Sri Ratan Sarkar vs The State Of Tripura
2024 Latest Caselaw 1002 Tri

Tripura High Court

Sri Ratan Sarkar vs The State Of Tripura on 27 June, 2024

Author: T. Amarnath Goud

Bench: T. Amarnath Goud

                  HIGH COURT OF TRIPURA
                        AGARTALA

                      WP(C) 801 of 2023

Sri Ratan Sarkar, son of late Rajendra Sarkar,
resident of Ramnagar Road No.4, PO- Ramnagar, PS-
West Agartala,     Sub-Division-Sadar,   District-West
Tripura, PIN-799002, aged about 51 years.


                                                  ............... Petitioner

                             Versus

1.     The State of Tripura, represented by the
Commissioner & Secretary, Public Works Department
(Roads & Buildings), Government of Tripura, having his
office at New Secretariat Complex, Gorkhabasti,
Agartala, PO-Kunjaban, PS- New Capital Complex, Sub-
Division- Agartala, District- West Tripura.


2.    The Commissioner & Secretary to the Public
Works      Department        (Roads & Buildings),
Government of Tripura, having his office at New
Secretariat Complex, Gorkhabasti, Agartala, PO-
Kunjaban, PS- New Capital Complex, Sub-Division-
Agartala, District- West Tripura.


3.    The Executive Engineer, Kumarghat Division
PWD (R&B), Government of Tripura, District- Unakoti
Tripura.

                                                 .....State respondents

4. National Buildings Construction Corporation Limited (NBCC), a Company, incorporated under the Companies Act, 1956, having its registered office at NBCC Bhawan, Lodhi Road, New Delhi-110003, Represented by its General Manager, having his office at NBCC Bhawan, Lodhi Road, New Delhi-110003.

5. The General Manager, having his office at NBCC Bhawan, Lodhi Road, New Delhi-110003.

6. The Senior General Manager (Engg), RBG Head-Tripura, National Buildings Construction Corporation Limited, having his office at Jackson Gate Building, 3rd floor, Lenin Sarani, Agartala-799001, West Tripura.

7. The Additional General Manager, National Buildings Construction Corporation Limited, having his office at Jackson Gate Building, 3rd floor, Lenin Sarani, Agartala-799001, West Tripura.

                                                           ............ NBCC Respondents


 For Petitioner(s)            :       Mr. Somik Deb, Sr. Advocate
                                      Mr. P. Chakraborty, Advocate

 For Respondent(s)            :       Mr. KK Pal, Advocate
                                      Mr. K. De, Add. G.A.

 Date of hearing and
 delivery of judgment
 and order                    :       27.06.2024.

 Whether fit for reporting :          Yes/No.




                       HON'BLE MR. JUSTICE T. AMARNATH GOUD

                                  Judgment and Order(Oral)

Heard Mr. Somik Deb, learned senior counsel assisted by Mr. P.

Chakraborty, learned counsel appearing for the petitioner. Also heard Mr. KK

Pal, learned counsel appearing for respondents No.4 to 7. Mr. K. De, learned

Addl. G.A. is present on behalf of the State respondents No.1 to 3.

[2] The present writ petition is filed under Article 226 of the Constitution of

India by the petitioner seeking following reliefs:

"(i) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Certiorari and/or in the nature thereof, shall not be issued for directing them, to transmit the records, relevant to the subject matter of this writ petition for rendering substantive and conscionable justice to the petitioner;

(ii) Issue Rule, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued for mandating/directing them, to forthwith release the forfeited Performance Guarantee, amounting to Rs.12,80,147/, alongwith Interest, @ 12% per annum, from the date of invocation of Bank Guarantee, till its actual realization, in favour of the petitioner;

(iii) Call for the records appertaining to this petition............"

[3] The case of the petitioner in brief is that the National Buildings

Construction Corporation Limited (NBCC for short) had issued a Work Order in

favour of the petitioner dated 23.08.2010 and subsequently, the petitioner had

entered into an Agreement dated 26.11.2010 with the NBCC. Thereafter, the

Senior General Manager (Engg.) issued a Letter of Acceptance dated

23.08.2010, in favour of the petitioner and subsequent thereto, a Notice dated

14.10.2010 was issued to the petitioner, directing him to proceed with the

execution of the said work. It is contended that the Deputy General Manager

(Fin) issued a letter dated 21.02.2020 to the Senior Branch Manager, State

Bank of India, for encashment of the Bank Guarantee, amounting to

Rs.12,80,147.00, submitted by the petitioner, and remit the sum, in favour of

the NBCC. Pursuant thereto, the Assistant General Manager, State Bank of India

issued a letter dated 25.02.2020 in favour of the petitioner with a request to

arrange sufficient balance in the account of the petitioner for the purpose of

realization of Bank Guarantee, as invoked by the NBCC.

[4] It is contended by the petitioner that he submitted a letter to the

General Manager (Engg), NBCC Ltd. PMGSY Works dated 04.06.2020, inter alia

praying for releasing the amount of Rs. 19,36,302/-, withheld from the account

of the petitioner and on the same date, he submitted another letter to the

General Manager (Engg), NBCC Ltd. PMGSY Works, inter alia praying for

releasing the Security Deposit, amounting to Rs.12,63,003/-. Since, the above

letters did not evoke any response thereto, the petitioner submitted another

letter to the Assistant General Manager dated 13.10.2020, inter alia praying for

issuing the Performance Guarantee, and thereupon, for issuance of a new Bank

Guarantee of Rs. 12,80,147/- in favour of the NBCC Ltd. Thereafter, the

Additional General Manager (Engg), NBCC, issued a Show Cause Notice dated

03.03.2021, thereby directing the petitioner, to furnish a reply within a period of

7 days, as to why the action, as per SBD Clause 52.00 shall not be taken

against him. Accordingly, the petitioner submitted his reply on 22.03.2021 to

the said show-cause notice. Regarding the claim of the petitioner for the release

of the Performance Bank Guarantee, he submitted a further letter to the

General Manager (Engg.), NBCC Ltd. PMGSY Works on 27.07.2021, thereby

praying for releasing the Performance Bank Guarantee, at the tune of

Rs.12,80,147/-, in favour of the petitioner. But, since the claim of the petitioner

has not been fulfilled, he has approached this Court by filing the instant writ

petition.

[5] Mr. Somik Dab, learned senior counsel appearing for the

petitioner contends that the petitioner has executed the works in favour of the

respondents in terms of the contract to which the petitioner had entered into an

agreement dated 26.11.2010 with the NBCC- respondent. On execution of the

work, petitioner was also taken for the maintenance of the works for five years

in accordance with the contract. He further submits that the execution of the

work was satisfactorily completed on 30.03.2014 as per the information

received from the official website of the NBCC. During the contract period, there

were no grievances and no notice was issued to the petitioner to say that he

was rendering defective works or there was defect in maintenance of the said

work. Mr. Deb, learned senior counsel submits that the respondents have not

provided any documentary proof to show that the works allotted to the

petitioner or maintenance of works have not been executed properly. He,

therefore, urges this Court to allow the instant petition with all the reliefs as

sought for by the petitioner herein.

[6] Mr. Deb, learned senior counsel to support his contention on

behalf of the petitioner, has placed reliance on the judgment of the Hon'ble

Supreme Court in M.P. Power Management Company Limited, Jabalpur v.

SKY Power Southeast Solar India Private Limited and others reported in

(2023) SCC 703. The relevant paragraphs of the said judgment as referred by

the learned senior counsel, is quoted hereinbelow:

".........82.3. The mere fact that relief is sought under a contract which is not statutory, will not entitle the respondent State in a case by itself to ward off scrutiny of its action or inaction under the contract, if the complaining party is able to establish that the action/inaction is, per se, arbitrary. *************************************************

82.6. Without intending to be exhaustive, it may include the relief of seeking payment of amounts due to the aggrieved party from the State. The State can, indeed, be called upon to honour its obligations of making payment, unless it be that there is a serious and genuine dispute raised relating to the liability of the State to make the payment. Such dispute, ordinarily, would include the contention that the aggrieved party has not fulfilled its obligations and the Court finds that such a contention by the State is not a mere ruse or a pretence.

82.7. The existence of an alternate remedy, is, undoubtedly, a matter to be borne in mind in declining relief in a writ petition in a contractual matter. Again, the question as to whether the writ petitioner must be told off the gates, would depend upon the nature of the claim and relief sought by the petitioner, the questions, which would have to be decided, and, most importantly, whether there are disputed questions of fact, resolution of which is necessary, as an indispensable prelude to the grant of the relief sought. Undoubtedly, while there is no prohibition, in the writ court even deciding disputed questions of fact, particularly when the dispute surrounds demystifying of documents only, the Court may relegate the party to the remedy by way of a civil suit.

82.8. The existence of a provision for arbitration, which is a forum intended to quicken the pace of dispute resolution, is viewed as a near bar to the entertainment of a writ petition [see in this regard, the view of this Court even in ABL explaining how it distinguished the decision of this Court in State of U.P. v. Bridge & Roof Co. (India) Ltd., by its observations in SCC para 14 in ABL].

82.9. The need to deal with disputed questions of fact, cannot be made a smokescreen to guillotine a genuine claim raised in a writ petition, when actually the resolution of a disputed question of fact is unnecessary to grant relief to a writ applicant........"

[7] On the contrary, Mr. KK Pal, learned counsel for the NBCC

respondents i.e. respondents No.4 to 7 submits that the petitioner did not fulfill

the contractual obligation as per the agreement as a result, the physical

condition of the road was terrible and the respondents have faced humiliation as

there were several public representations to the respondents about the poor

condition of the road. He submits that the petitioner was repeatedly requested

to carry out the repairing works but no action was taken. It is contended by the

learned counsel that the instant case is squarely covered by the judgment and

order dated 31.07.2023 of the Division Bench of this Court in WP(C) No.249 of

2023 [Hindustan Steelworks Construction Limited v. The State of Tripura and

others], wherein this Court dismissed the writ petition. For the purpose of

reference the said order of this Court dated 31.07.2023 is reproduced herein-

below:

"..........6. Having considered the submissions of learned counsel for the parties and in view of the nature of the factual dispute involved herein, including those with private contractors/agencies who have also been joined as party and against whom the petitioner HSCL may have independent cause of action to agitate, we are not inclined to entertain the writ petition under Article 226 of the Constitution of India, as not only clause 8.0 of the Tripartite agreement, but Clause 24 of the General Conditions of Contract provide for Alternative Dispute Resolution (ADR) mechanism.

7. Accordingly, the writ petition is dismissed. Petitioner may have liberty to approach the appropriate forum.

8. Pending application(s), if any, also stands disposed of."

[8] Mr. Pal, learned counsel for the respondents No.4 to 7 further

contends that as the petitioner did not comply with the provisions of the

contract agreement, it does not appear viable to release the Security

Deposit/Performance Bank Guarantee to the delinquent agency. It is prayed by

the learned counsel that as per the terms and conditions of the contract,

respondents have ample power for seizure and forfeiture of the deposits which

the petitioner has provided during the contract period and in the event, if the

petitioner is aggrieved, clause-24.1 of the contract is available to him for

referring the disputed matter to the concerned authority. Learned counsel,

therefore, urges this Court to dismiss the present petition filed by the petitioner.

For the purpose of reference, the said clause-24.1 of the contract

is quoted hereunder:

"24.1 If any dispute in difference of any kind what-so-ever shall arise in

connection with or arising out of this Contract of the execution of Works

or maintenance of the Works there under, whether before its

commencement or during the progress of Works or after the

termination, abandonment or breach of the Contract, it shall, in the first

instance, be referred for settlement to the competent authority within

45 days of arising the dispute or difference, described along with their

powers in the Contract Dates, above the rank of the Engineer. The

competent authority shall, within a period of forty-five days after being

requested in writing by the Contractor to do so, convey his decision to

the Contractor Such decision in respect of every mater so referred shall,

subject to review as hereinafter provided, be final and binding upon the

Contractor. In case the Works is already in progress, the Contractor

shall proceed with the execution of the Works, including maintenance

thereof, pending receipt of the decision of the competent authority as

aforesaid, with all due diligence."

[9] Heard learned counsel for the parties. Perused the record. Prima

facie, on perusal of record along with the counter affidavit, this Court finds that

the action of the respondents in dealing with the contract is not justified as the

respondents on no occasion, have indicated the defectiveness in the

works/maintenance of works and they have not placed on record as to how they

made things good and what is the amount they have incurred. There is no

communication or any information provided in the counter-affidavit to that

effect. Undoubtedly, the agreement has provided ample powers upon the

respondents to withhold the amounts or to impose penalty or to make things

good but, all those powers are supposed to be exercised with due diligence

strictly within the ambit of law by following the principles of natural justice.

[10] In view of the above, this Court is of the view that there are

allegations and counter allegations made by the parties but, the record is not

sufficiently placed before this Court by both the parties. Thus, it will be

appropriate if the matter be resolved by both the parties under the earlier

quoted clause 24.1 of the contract agreement, wherein it is categorically stated

that if any dispute in difference of any kind what so ever shall arise in

connection with or arising out of that Contract of the execution of works or

maintenance of the works be referred for settlement to the competent authority.

Hence, both the parties are directed to avail the remedies under clause-24.1 of

the said contract as this Court cannot go into the disputed questions of facts

which are not placed on record. It is needless to observe that once the matter is

referred under clause 24, it is open for both sides to place all material in support

of their claim and counter claim as desired.

[11] In so far as granting any relief as prayed is declined and the writ

to the extent is dismissed.

However, with the above observation and direction, this writ

petition is accordingly disposed of.

As a sequel, miscellaneous application(s), pending if any, shall

also stand closed.

                                                                 JUDGE




  Sabyasachi G.



SABYASACHI        Digitally signed by
                  SABYASACHI GHOSH

GHOSH             Date: 2024.07.03 17:47:44
                  +05'30'