M/S Karnataka State Tourism ... vs M Chiranjeevi
2025 Latest Caselaw 2491 Kant

Karnataka High Court

M/S Karnataka State Tourism ... vs M Chiranjeevi on 17 January, 2025

                            -1-
                                        WA NO.1013 of 2022
                                    C/W CCC NO.1005 of 2022



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17th DAY OF JANUARY 2025

                         PRESENT
        THE HON'BLE MRS JUSTICE ANU SIVARAMAN
                           AND
         THE HON'BLE MR JUSTICE UMESH M ADIGA
         WRIT APPEAL NO. 1013 OF 2022 (GM-RES)
                           C/W
                CCC NO.1005/2022(CIVIL)
IN WA NO.1013 OF 2022
BETWEEN:

M/S. KARNATAKA STATE TOURISM
DEVELOPMENT CORP.
BMTC- TERMINAL, YESHWANTHPUR,
BANGALORE.
REP. BY ITS MANAGING DIRECTOR.
                                                 ...APPELLANT
(BY SRI.GURURAJ JOSHI, ADVOCATE)

AND:

1 . M. CHIRANJEEVI
    S/O. LATE K.MUNIKRISHNA RAJU,
    AGED ABOUT 60 YEARS,
    CLASS I CONTRACTOR,
    NO.1820/1, 21ST CROSS,
    6TH MAIN ROAD,- C BLOCK,
    SAHAKARNAGAR,
    BANGALORE-560 092.

2 . THE STATE OF KARNATAKA,
    REP. BY ITS SECRETARY,
    DEPARTMENT OF TOURISM,
    VIKASA SOUDHA, AMBEDKAR VEEDHI,
    BANGALORE -560 001.

3 . THE DIRECTOR,
    DEPARTMENT OF TOURISM,
    EMBASSY BUILDING, INFANTRY ROAD,
                              -2-
                                        WA NO.1013 of 2022
                                    C/W CCC NO.1005 of 2022



    AMBEDKAR VEEDHI,
    BANGALORE-560 001.
                                              ...RESPONDENTS
(BY SRI. ASHOK B PATIL, ADVOCATE/CR/R1,
    SRI.VIKAS ROJIPURA, AGA FOR R2 & R3)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR RECORDS IN
WP No-46302/2018 DISPOSED OF ON 03.09.2022 FROM THE
RECORDS, OF THIS HONBLE COURT AT BANGALORE AND SET ASIDE
THE IMPUGNED ORDER/ JUDGEMENT DATED 03.09.2022 PASSED IN
WP No-46302/2018 BY THE LEARNED SINGLE JUDGE OF THIS
HONBLE COURT AT BANGALORE THE CC OF WHICH IS PRODUCED AT
ANNEXURE-I THERE BY ALLOWING THIS APPEAL AND DISMISS THE
WRIT PETITION FILED IN WP No-46302/2018 FILED BY THE
RESPONDENT No-1.

IN CCC NO.1005 OF 2022
BETWEEN:

SHRI. M. CHIRANJEEVI,
S/O LATE K.MUNISWAMY RAJU,
AGED 61 YEARS,
CLASS I CONTRACTOR,
NO.1820/1, 21ST CROSS,
6TH MAIN ROAD,
"C" BLOCK, SAHAKARANAGAR,
BENGALURU-560 092.
                                              ...COMPLAINANT
(BY SRI. ASHOK B PATIL, ADVOCATE)

AND:

SHRI. G. JAGADEESH, IAS,
THE MANAGING DIRECTOR,
THE KARNATAKA STATE TOURISM
DEVELOPMENT CORPORATION LTD,
GROUND FLOOR,
BMTC YESHWANTHPUR,
T.T.M.C BUS STAND,
YESHWANTHPUR CIRCLE,
BENGALURU-560 022.
                                                  ...ACCUSED
(BY SRI. GURURAJ JOSHI, ADVOCATE)
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                                        WA NO.1013 of 2022
                                    C/W CCC NO.1005 of 2022



     THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT,1971 R/W UNDER ARTICLE 215 OF THE
CONSTITUTION OF INDIA, BY THE COMPLAINANT, WHEREIN HE
PRAYS THAT THE HON BLE COURT BE PLEASED TO ISSUE SUMMON
THE ACCUSED AND INITIATE PROCEEDINGS FOR PUNISHING HIM
FOR COMMITTING CIVIL CONTEMPT OF COURT FOR THE WILLFUL
DISOBEDIENCE OF THE DIRECTIONS ISSUED BY THIS HONBLE
COURT IN THE ORDER DATED 3.9.2022 PASSED IN WP
NO.46302/2018(ANNEXURE-A).

    THIS APPEAL AND CCC HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.11.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, UMESH M. ADIGA J.,
PRONOUNCED THE FOLLOWING:


CORAM:      HON'BLE MRS JUSTICE ANU SIVARAMAN
            and
            HON'BLE MR JUSTICE UMESH M ADIGA


                        CAV JUDGMENT

(PER: HON'BLE MR JUSTICE UMESH M ADIGA)

This intra Court appeal is filed under Section 4 of

Karnataka High Court Rules challenging the correctness of

the orders dated 03.09.2022 passed in

W.P.No.46302/2018(GM-RES) by the writ Court.

2. Respondent No.1 filed the writ petition praying

to quash the letter dated 7/9.4.2018 and 10.5.2018,

issued by respondent No.2 and direct the respondent No.2

to pay Rs.34,85,179/- and Rs.11,94,983/- with interest at

WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

the rate of 18% p.a. The writ Court after hearing both the

parties, by the impugned order allowed the writ petition.

3. Brief facts of the case of respondent No.1

herein/writ petitioner are that he was a successful bidder

of the tender floated by respondent Nos.2 and 3 in respect

of construction of additional rooms of Gandhi Nilaya on

Nandi Hills, Chikkaballapura District. The value of the said

tender was Rs.146.36 lakhs. Later on additional work of

construction was also given to respondent No.1 and total

tender amount of the construction was enhanced to

Rs.194 lakhs. An agreement dated 30-4-2011 was

entered into between respondent No.1 and the appellant

in this regard. Respondent No.1 completed the

construction in terms of the said agreement. As per terms

of agreement, respondent No.1 was submitting running

account bills (for short 'RA bills') from time to time and

they have been paid by the appellant. Respondent No.1

submitted final bill dated 21.11.2017 for Rs.34,85,179/-

after deducting the retention money Rs.2,42,285/-. It was

WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

certified by architects engaged by the appellant. Amount

of the said bill was not paid by the appellant.

4. Appellant took possession of the building on

04.04.2017 in the presence of Assistant Executive

Engineer and representative of the architect of the

appellant. The said building was inaugurated on

10.04.2017 by the then Transport Minister of Government

of Karnataka and it was put to use by the appellant.

5. Appellant did not pay the amount of the Bill

dated 21.11.2017. Respondent waited for nearly a year

and wrote a letter requesting appellant to pay the amount

of the bill. The appellant instead of paying the amount,

has sent a letter dated 07/09 April 2018 contending that

there were certain defects in the construction, which

needs to be rectified by respondent No.1. There were

exchanges of letters/notices between appellant and

respondent No.1 but appellant did not pay the amount of

the said outstanding bill. As per Clause No.47.1 of the

condition of the contract, appellant was required to make

WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

payment within 90 days in the absence of any defect in

the works or discrepancy in the bill. However appellant

did not pay the amount within 90 days and even not

raised any objection in this regard within that period.

Appellant with an intention to delay the payment of the bill

raised unnecessary objection after an year of taking over

possession of the building and put it to use contrary to the

terms of tender documents and agreement. The said act of

Appellant is arbitrary and illegal. With these reasons

prayed for the above said reliefs.

6. Appellant contended that there were defects in

the construction of the building, which were noted in the

letters under challenge. Appellant called upon the

respondent No.1 to cure all the defects noted in the letter.

However, respondent No.1 did not cure the defects of the

construction as well as fixtures. In view of the said

reason, the said RA bill submitted by respondent No.1 was

not approved. Merely Appellant took possession of the

building and inaugurated the same does not mean that

there were no defects. Bill amount was inflated. Hence

WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

Respondent No.1 was not entitled for entire amount of the

Bill. He cannot file Writ Petition to recover the alleged

outstanding amount. Serious question of facts are involved

in this case, which has to be decided by the civil court and

not under extraordinary jurisdiction of the High court

under Article 226 of the Constitution. Writ petition is not

maintainable. With these reasons appellant prayed to

dismiss the writ petition.

The learned Single Judge considered the contentions,

directed the respondent to pay to the petitioner a sum of

Rs.34,85,179/- plus the retention amount, if any, with

interest at the rate of 12% per annum along with a cost of

Rs.2,00,000/- and report compliance to the Registrar

General of this Court within six weeks. Delay if brooked

would attract an additional interest of 1% per mensem.

The appeal is directed against the said direction.

7. We have heard the arguments of learned

advocates appearing for both the sides. In addition to oral

WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

arguments, both sides filed written arguments. We have

perused materials placed on record.

8. The learned advocate for the appellant would

submit that respondent No.1 did not complete the

construction in time as per the terms of the agreement.

There was long delay in completing the construction.

Respondent No.1 did not construct the building in

accordance with the plan approved by the appellant. The

quality of fixtures and electrical items are not as

prescribed in the tender. These defects were noted by

visit of responsible officers of the Government as well as

the appellant. Thereafter, notices were sent to respondent

No.1 to rectify the said defects. Respondent No.1 did not

attend the said work and hence he is not entitled for relief

prayed in the writ petition.

9. The appellant further contended that

respondent No.1 ought to have approached civil court for

recovery of the alleged dues. Serious question of facts are

involved in this case and hence respondent No.1 cannot

WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

file petition under Article 226 of Constitution for recovery

of the amount due. Alternative/efficacious remedy

available to respondent No.1 and hence writ petition is not

maintainable.

10. Appellant further contended that merely

possession was handed over to appellant and the building

was inaugurated will not come in the way of right of the

appellant to call upon the respondent No.1 to cure the

defects of the construction. The Writ Court did not

consider all these facts.

11. It is further contended that pleading of

Respondent No.1 in the writ petition are not in accordance

with the provisions of CPC. He has not pleaded several

facts in the writ petition and not substantiated by

materials to prove the facts pleaded. They were not

considered by the writ court. Therefore, the findings of

the writ court are erroneous and prayed to allow the

appeal and set aside the impugned order passed by the

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WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

writ court. In support of his contentions learned advocate

relied on the following judgments:

i. Union of India & Ors. V. M/s Puna Hinda [AIR 2021 SC 4187]

ii. M/s Kelkar & Kelkar V. M/s Hotel Pride Executive Pvt. Ltd. [AIR 2022 SC 2159].

iii. Union of India V. Major General Shrikant Sharma [2015-6-SCC- 773]

iv. Kanaiyalal Lalchand & Sachdev & Ors V. State of Maharashtra & Ors [2011(2) SCC 782]

v. City & Industrial Development Corporation V. Dosu Aardeshir Bhiwandiwala [SCC p.175, para 30]

vi. Nivedita Sharma V. Cellular Operators Association of India & Ors [2011 (14) SCC 337]

vii. Mafatlal Industries Ltd V. Union of India [SCC p.607, para 77]

viii. Executive Engineer, Southern Electricity Supply Company or Orissa Ltd & another V. Sri Seetaram Rice Mill [2012 (2) SCC 108)

ix. Cicily Kallarackal V. Vehicle Factory (2012(8) SCC

524)

x. Commissioner of Income Tax & Ors V. Chhabil Dass Agarwal (2014(1) SCC 603]

xi. Thansingh Nathmal V. Superintendent of Taxes (AIR p.1423, para 7)

xii. Titaghur Paper Mills co. Ltd V. State of Orissa [SCC p.440-41, para 11]

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WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

xiii. Associated Provincial Picture Houses Ltd V. Wednesbury Corporation [1948(1)KB 223.

xiv. Council of Civil Service Unions V. Minister for Civil Service [1984(3) All ER 935(HL)]

xv. Siemens Public Communication V. Union of India [2008-16- SCC-215] [AIR 2009 SC 1204]

xvi. Gohil Vishwaraj Hanubhai & Ors. V. State of Gujarat [2017-13- SCC-621]

xvii. Chairman, All India Railway Recruitment Board V. K.Shyam Kumar (2010 (6) SCC 614 at para 22]

xviii. Union of India V. T.R. Varma [AIR 1957 SC 882]

xix. Hon'ble Apex Court in the matter of The State of Maharashtra and others Vs Great ship (India) Ltd, in Civil Appeal No.4956 of 20212- dt.20.9.2022- reported in Live-Law (SC)-Page-784.

12. The learned counsel for respondent No.1

submitted that very same points were urged by the

appellant before the writ court. Writ Court has considered

them and by assigning the reasons rejected them. Most of

the facts of the case are not in dispute. Appellant did not

pay the amount of the bill in question on the ground that

there were certain defects/short comings in the

construction of the building. As per the terms of

agreement, it should have brought them to the notice of

respondent No.1 within 90 days of submission of the bill.

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WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

In this case alleged defects were intimated to respondent

No.1 after lapse of nearly a year after submission of final

bill and that too after respondent sent letter requesting for

payment of outstanding amount.

13. Learned counsel for respondent No.1 would

further submit that there are no serious disputes regarding

the facts in issue. Most of the facts are admitted facts. At

the time of handing over of the building on 04.04.2017 in

the presence of an expert i.e. Assistant Executive Engineer

of Department of tourism as well as a representative of

architect appointed by the KSTDC, possession was taken

and the building was inaugurated by the then Minister of

Government of Karnataka. Even appellant had published

in the newspaper stating that after renovating and

construction of rooms at Nandi hills in Chikkmagalur

District, (the building in question) it had earned more than

Rs.4.57 crores. A year after the submission of the final bill

by the respondent No.1, with a mala fide intention to

delay the payment, objections were raised regarding

payment of bill. That cannot be reason to withhold bill

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WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

amount. The writ court in detail discussed these facts and

rightly held that this could be decided under Article 226 of

Constitution of India and it does not call for interference

by this Court. With these reasons respondent No.1 prayed

to dismiss the appeal.

14. The writ Court considering the materials available

on record as well as considering the contentions of both

the parties and also following the law laid down by the

Hon'ble Apex court held that the writ petition is

maintainable. Pleadings of the parties indicates that most

of the facts of the case are undisputed. Entitlement of

respondent No.1 to claim the amount of the bill is also not

disputed. Contention of the appellant is that there were

defects in the construction work as noted in letters under

challenge and they were not attended by the respondent

No.1. The alleged defects of construction stated by the

appellant in its reply letters were not at all notified by the

engineers of Tourism Department or Architect nominated

by the appellant at the time of joint inspection of building

while taking over possession. Undisputedly building was

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WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

put into use by the appellant and earned few crores of

rupees as per press statement, which is not disputed.

During the use of building also, alleged defects were not

notified to respondent No.1. The alleged defects appear to

be noted for the first time when respondent No.1 sent

letter requesting the appellant for payment of the dues.

From the materials placed on record any prudent man can

infer that just to delay the payment of the bill amount said

notice was sent by the appellant. The officers of the

appellant (KSDTC) themselves requested the Government

to grant the funds for clearing outstanding bills of

respondent No.1. About a year after handing over the

building, appellant started contending that there were

defects in the construction. Even at that time also there

was no joint inspection of the construction to assess the

defects/short comings in the buildings.

15. Appellant is "State" as defined under Article 12

of the Constitution of India. Its act shall be ideal to others.

It shall act prudently to do justice to its subjects.

Admittedly respondent No.1 invested his hard earned

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money in construction work with legitimate expectation of

payment of the same by Appellant in time. Unfortunately,

appellant did not pay the same. There are no serious

questions of facts involved in this lis to be decided by the

Civil Court. Matter is pending for last about four years and

payments were not made to respondent No.1. It appears

just to further delay the payment, appellant-State is

taking all these hyper-technical objections. Arbitrary acts

of State and illegal exercise or abuse of power by the

authorities is indeed open to challenge in writ proceedings.

Hence Writ Petition is maintainable.

16. The learned advocate for appellant relied on

the several judgments referred above. The law laid down

in the above judgments are that, when efficacious

remedies are available, writ is not maintainable.

Depending upon the facts and circumstances of respective

cases said laid law is laid down. Looking to peculiar facts

and circumstances of this case as stated above, writ

petition is maintainable. The principle of law laid down in

the above said judgments are not applicable to facts of

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WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

present case. It is clear that the existence of an alternate

remedy is not a bar for exercise of writ jurisdiction and it

is for the writ Court to consider the efficacy of the remedy

and the necessity to relegate parties to such other

remedies. Therefore, we do not find any reasons to find

fault with the order passed by the writ court in exercising

the jurisdiction under Article 226 of Constitution of India

for granting the relief in favour of respondent No.1.

17. The Managing Director of appellant -

Corporation wrote a letter dated 16-12-2017 (Annexure X)

to the Director of the Tourism Department requesting the

Government to pay outstanding dues of Rs.34,85,179/- to

the contractor/respondent No.1. It also indicates that as

per letter of RC architects, the construction work was

already completed and building has been handed over to

the Corporation. On 08.02.2018, respondent No.1 wrote a

letter to appellant (Annexure-Y) requesting for payment of

the amount of the bill submitted about eight months prior

to the said letter. It appears there after dispute started

regarding construction, the Managing Director wrote letter

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WA NO.1013 of 2022 C/W CCC NO.1005 of 2022

dated 07.04.2018, for the first time informing respondent

No.1, that there were defects in the construction of the

building and called upon the respondent No.1 to cure the

said defects. Respondent No.1 sent notice dated

25.04.2018 (Annexure - AV) through his advocate calling

upon the appellant to pay the amount due to him.

Thereafter, the appellant sent another notice dated

10.05.2018 informing additional defects in the building

and the defects were increased to seven in numbers.

These defects were not noted, while taking over

possession of the building. Undisputedly possession was

taken by the appellant, respondent No. 2 and 3, in the

presence of Engineer of Tourism Department as well as

architect- representative appointed by the appellant -

KSTDC. Even thereafter, till writing of letter by the

respondent No.1, no such complaint was made. These

facts prima facie shows that just to delay payment of

outstanding bill of respondent No.1 said objections were

raised by officers of the appellant, as repeatedly

contended by respondent No.1. If, really, there were such

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defects, they should have made joint inspection in the

presence of Respondent No.1 immediately after taking

over possession of the building.

18. The writ Court considering all the facts and

circumstances of the case righty allowed the writ petition.

Respondent No.1 claimed interest @18% per annum on

the amount due. The writ court has awarded reasonable

rate of interest, i.e., @12% per annum. The said interest

is also not exorbitant. Respondent No.1 has invested his

money in completion of the building with fond hope that it

will be reimbursed with in short period. Appellant did not

pay the said dues in time and without justifiable reasons

delayed the payment. Respondent is kept out of his money

for last about 7 years. We do not find any error in

awarding interest @ 12% p.a.

19. In the written arguments as well oral arguments

the appellant contended that provision of Order VI, VII

and VIII of C.P.C., are not strictly followed by the

respondent No.1. The said contention is not tenable. Writ

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petitioner pleaded facts in the petition and produced

necessary documents in support of his contention. Most of

them are not disputed. Strict rule of pleading and proof as

required in civil litigation, may not be applicable to writ

proceedings. Therefore on the ground of such hyper

technical reasons writ petition cannot be dismissed.

The appellant did not comply the direction of the writ

court in time. Hence respondent No.1 has filed contempt

petition. In the mean while this appeal has been filed.

Hence it cannot be held that accused appellant deliberately

disobeyed the order/direction of this court. Hence

contempt petition needs to be closed.

20. For the above said reasons we are of view that

writ court has not committed any error which requires

interference in the said findings. Accordingly we pass

following

ORDER

The writ appeal is dismissed.

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Appellant shall comply the directions of writ

Court with in eight weeks from the date of this order.

Contempt petition is closed.

Sd/-

(ANU SIVARAMAN) JUDGE

Sd/-

(UMESH M ADIGA) JUDGE

AG