Madras High Court
The Corporation Of Thanjavur vs J.Srinivasan on 15 April, 2021
W.A.(MD)No.762 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.04.2021
CORAM
THE HONOURABLE MR.JUSTICE T. S. SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.762 of 2021
and C.M.P.(MD) No.3425 of 2021
The Corporation of Thanjavur,
Rep. by its Commissioner,
Office of the Corporation of Thanjavur,
Thanjavur District. ... Appellant/Respondent
Vs.
J.Srinivasan ... Respondent/Petitioner
Prayer : Appeal filed under Clause 15 of the Letters Patent against the order
passed by this Court in W.P.(MD)No.12785 of 2018, dated 14.11.2019.
For Appellant : Mr.N.Dilip Kumar
For Respondent : Mr.Vijaya Shankar
for M/s.D.Senthil
*****
JUDGMENT
(Judgment of the Court was delivered by T. S. SIVAGNANAM, J.)
This appeal by the Corporation of Thanjavur, the respondent in W.P.
(MD) No.12785 of 2018, is aggrieved by the order dated 14.11.2019, allowing
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W.A.(MD)No.762 of 2021
the Writ Petition, filed by the respondent, the contractor, who was engaged by
the appellant for man power supply.
2.The prayer of the respondent herein in the Writ Petition is that the
appellant Corporation has to pay a sum of Rs.6,20,100/-, being payable for man
power supply effected by the respondent by considering the representation
dated 20.02.2018. Since the representation was not considered, the respondent
was constrained to file the Writ Petition.
3.The appellant Corporation raised three contentions before the
learned Writ Court. Firstly, the Writ Petition is not maintainable as disputed
questions of facts is involved. Secondly, the conduct of the officials/Engineers
of the Corporation is subject matter of criminal investigation and the matter is
sub-judice and the respondent/writ petitioner has been arrayed as third accused.
Thirdly, the contract entered into between the appellant and respondent is not
statutory contract.
4.We have gone through the reasons assigned by the learned Writ
Court and we are not able to accept the reasons made therein, though we agree
with the ultimate conclusion of the learned Writ Court. Firstly, the contract is a
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W.A.(MD)No.762 of 2021
non-statutory contract and a dispute between the parties to a contract definitely
would result in adjudicating disputed questions of fact and Writ Petition would
not be normally entertained. Secondly, in non-statutory contract, the terms have
to be enforced in accordance with the conditions contained in the contract and
not otherwise. Whether a relief of specific performance is possible or not has to
be adjudicated by a different forum and not under Article 226 of the
Constitution of India. Therefore, under normal circumstances, the Writ Petition
should have been dismissed as not maintainable. Unfortunately, what appears to
have weighted in the minds of the learned Writ Court is the criminal
investigation, which has resulted in registration of F.I.R. against two of the
Corporation officials, in which the respondent is included as the third
respondent, and whether the pendency of the same should be a bar for refusing
the amount payable under the contract to the respondent. The learned Writ
Court was convinced that the appellant cannot withhold the amount. We are in
agreement with the said finding of the learned Writ Court though not strictly for
the reasons given by the learned Writ Court but for the reason, which we assign
hereunder.
5.Admittedly, the appellant Corporation has not initiated any action
against the respondent/writ petitioner to cancel the contract or issue show cause
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W.A.(MD)No.762 of 2021
notice for recovery of excess payment etc., The criminal complaint, which is
under investigation is regards culpability of the respondent/writ petitioner with
the officials/Engineers of the Corporation. We are informed that the
respondent/writ petitioner was not initially arrayed as accused, but subsequently
included in the F.I.R. as accused No.3. Therefore, we find that withholding of
the amount payable to the respondent for the man power supply could not be
justified in the facts and circumstances of the case. However, we are restrained
from making any observation as regards the quantum of amount payable, which
has to be decided by the appellant Corporation in discussion with the
respondent/writ petitioner, because certain deductions have to be made for
statutory payments.
6.Mr.N.Dilip Kumar, learned Standing Counsel appearing for the
appellant Corporation expressed an apprehension that any direction issued for
the release of the amount should not be considered because in the criminal case
the investigation has been completed and the respondent has been arrayed as
third accused.
7.In the light of the apprehension expressed by the learned Standing
Counsel appearing for the appellant Corporation, we make it clear that the order
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W.A.(MD)No.762 of 2021
passed in the Writ Appeal will not have any impact on the criminal proceedings,
which is pending in S.C.No.21 of 2020, on the file of the Chief Judicial
Magistrate, Thanjavur, which shall be tried uninfluenced by any of the
observations made in this appeal.
8.In the result, the order passed in the Writ Petition is confirmed for
the reasons assigned by us above and there will a direction to the appellant
Corporation to pay the amount payable to the respondent/writ petitioner for the
man power supply effected and the quantum shall be arrived at by the officials
of the appellant Corporation after holding discussion with the respondent/writ
petitioner. This direction will have to be complied with within a period of six
weeks from the date of receipt of a copy of this order.
9.The Writ Appeal stands disposed of with the above observations and
directions. Consequently, connected Miscellaneous Petition is closed. No costs.
Index :Yes/No [T.S.S., J.] [S.A.I., J.]
Internet :Yes/No 15.04.2021
sj
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
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W.A.(MD)No.762 of 2021
T. S. SIVAGNANAM, J.
AND
S.ANANTHI, J.
sj
W.A.(MD)No.762 of 2021
15.04.2021
https://www.mhc.tn.gov.in/judis/
