M/S Chandra Nirman Pvt. Ltd. (A ... vs The State Of Madhya Pradesh Urban ...
2023 Latest Caselaw 6751 MP

                              --1-


IN THE       HIGH COURT OF MADHYA PRADESH
                   AT I N D O R E
                          BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                              &
    HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

                 ON THE 26th OF APRIL, 2023


                WRIT PETITION No. 8491 of 2023

BETWEEN:-
M/S CHANDRA NIRMAN PVT. LTD. (A COMPANY REIGSTERED UNDER
THE PROVISIONS OF THE COMPANIES ACT 1956/2013 THROUGH ITS
DIRECTOR MR. SAMEER AGARWAL S/O SHRI SHYAM AGARWAL, AGED
ABOUT 42 YEARS, OCCUPATION: BUSINESS REGISTERED OFFICE AT 2 A
GANESH CHANDRA AVENUE 7TH FLOOR ROOM NO. 07, KOLKATA
(WEST BENGAL)
                                                 .....PETITIONER

(SHRI ARPIT KUMAR OSWAL, LEARNED COUNSEL FOR THE PETITIONER)

AND
   THE STATE OF MADHYA PRADESH URBAN ADMINISTRATION AND
   DEVELOPEMNT     DEPARTMENT    THROUGH     ITS PRINCIPAL
1.
   SECRETARY MANTRALAYA, GOVT. OF MADHYA PRADESH VALLABH
   BHAWAN, DISTRICT BHOPAL. (MADHYA PRADESH)
   MUNICIPAL COUNCIL THANDLA THROUGH ITS CHIEF MUNICIPAL
2. OFFICER MUNICIPAL OFFICE THANDLA, DIST. JHABUA (MADHYA
   PRADESH)
                                              .....RESPONDENTS

(SHRI ANAND SONI, ADDITIONAL ADVOCATE GENERAL FOR THE
RESPONDENT/STATE)


      This petition coming on for admission this day, JUSTICE
                                        --2-


SUSHRUT ARVIND DHARMADHIKARI passed the following:

                                   ORDER

Heard on the question of admission and interim relief.

2. In this writ petition under Article 226 of the Constitution of India, the petitioner is praying for the following relief:-

"(i) That a writ, direction or order in the nature of Mandamus or any other writ which this Hon'ble Court may deem fit be issued calling for the record pertaining to this matter from the respondent for the kind perusal of this Hon'ble Court.

(ii) That a writ , direction or order in the nature of mandamus of any other writ which this Hon'ble Court may deem fit be issued thereby directing the respondent No.2 to clear the outstanding dues of Rs.60,59,440/- of the petitioner as directed by the Superintending Engineer by order dated 15.07.2022 which includes Security Deposit of Rs.11,80,000/- along with interest.

(iii) This petition be allowed with costs.

(iv) Any other or further relief which this Hon'ble Court deems fit be also granted."

3. The brief facts of the case are that the petitioner-company is a company registered under the provisions of Companies Act, 1956 and is carrying on the business of construction of buildings, road, sewer lines and other ancillary work related to infrastructure. The respondent No.2 floated a

--3-

tender for design, construction and commission of barrage on Padmavati river at Nagar Parishad, Thandla on 25.07.2015 in which the petitioner participated and was declared successful. An agreement was executed between the parties on 04.04.2016, which contains a clause for resolution of dispute. As per the terms and conditions of the Notice Inviting Tender (NIT), the petitioner successfully completed the work awarded to him on 31.03.2017 and completion certificate was issued on 18.05.2017. Some dispute arose between the parties, therefore, the petitioner invoked the arbitration clause. The learned arbitrator passed the final award on 15.07.2022 partly allowing the claim of the petitioner. However, even after the award having been passed, the respondents are not complying with the same and not making payment, hence, this petition.

4. On the other hand, Shri Anand Soni, learned Additional Advocate General opposed the prayer and submitted that this writ petition is not maintainable inasmuch as the same has been filed seeking execution/recovery of the money mentioned in the arbitral award. He placed reliance upon a judgment delivered by the Apex Court in the case of Director of Agriculture & others Vs. M.V. Ramachandra (SLP No.18371/2021) wherein the Apex Court has held as under:-

"We fail to appreciate how the writ petition before the learned Single Judge could have been entertained for recovery of money alleged to have been due to and payable under the bills/invoices. The learned Single Judge, as such, ought not to have been entertained the writ petition under Article 226 of the Constitution of India for recovery of money under the bills/invoices, more particularly, when in fact the

--4-

original writ petitioner (s) availed the remedy before Civil Court and filed Civil Suit, which came to be dismissed in default."

The learned Apex Court set aside the orders passed by the High Court and also held that it will be open for the original writ petitioner (s) to pursue the remedy before the civil court by getting the suit restored for the purpose. Learned Additional Advocate General further submits that the arbitral award cannot be executed by filing the writ petition whereas the petitioner can avail the alternative remedy for executing the award.

5. At this stage, learned counsel for the petitioner relied upon the judgment of the Division Bench of this Court in the case of Alok Kumar Vs. State of Madhya Pradesh, 2021 (1) MPLJ, 348 to contend that even after the alternative remedy is available, entertaining a petition would always depend on facts and circumstances of a given case. The Division Bench of this Court has held as under:-

"The seven well recognized exceptions to the rule of alternative remedy, which can be culled out from the afore- discussed judgments of the Supreme Court for entertaining a writ petition under Article 226/227 of the Constitution, can be summarized thus: (i) where the writ petition has been filed for enforcement of fundamental rights; (ii) where there has been violation of principle of natural justice; (iii) where the order of proceedings is wholly without jurisdiction; (iv) where the vires of any Act is under challenge; (v) where availing of alternative remedy subjects a person to very lengthy proceedings and unnecessary harassment; (vi) where the writ

--5-

petition can be entertained despite alternative remedy if the question raised is purely legal one, there being no dispute on facts; and (vii) where State or its intermediary in a contractual matter acts against public good/interest unjustly, unfairly, unreasonably and arbitrarily.

In view of the aforesaid, the writ petition deserves to be entertained.

6. Heard the learned counsel for the parties and perused the record.

7. In the case of Director of Agriculture & others (supra), the Apex Court has already held that the writ petition seeking recovery of money/execution of the arbitrarily award cannot be entertained under Article 226 of the Constitution of India. Even the seven exceptions carved out in the case of Alok Kumar (supra) would not be applicable to the facts and circumstances of the case inasmuch as the petitioner has failed to prove that the State or its intermediary in a contractual matter has acted against public good/interest unjustly, unfairly, unreasonably and arbitrarily, therefore, this Court is not inclined to entertain the writ petition.

8. Accordingly, the present writ petition is hereby dismissed. However, the petitioner would be at liberty to pursue the remedy before the appropriate forum in accordance with law, if so advised, seeking implementation of the arbitral award.

                       (S. A. DHARMADHIKARI)                (PRAKASH CHANDRA GUPTA )
                              JUDGE                                JUDGE
      N.R.


NARENDR Digitally signed
         by NARENDRA
A KUMAR KUMAR RAIPURIA
         Date: 2023.05.02
RAIPURIA 18:58:29 +05'30'