Uttarakhand High Court
SPA/313/2022 on 23 November, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE
SPECIAL APPEAL NO. 313 OF 2022
23rd NOVEMBER, 2022
Between:
M/s Mascot Sales Corporation ...... Appellant
and
U.P. Rajkiya Nirman Limited
and others ...... Respondents
Counsel for the appellant : Mr. Piyush Garg, learned counsel
Counsel for the respondents : Mr. Anil Kumar Joshi, learned
counsel
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
Issue notice.
Mr. Anil Kumar Joshi, learned counsel, appears
and accepts notice on behalf of all the respondents.
2) The present special appeal is directed against
the order dated 05.08.2022, passed by the learned Single
Judge, in Writ Petition (M/S) No. 876 of 2021. The writ
petition preferred by the appellant to seek a direction to
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the respondents for immediately release of Rs.41,23,008/-
to the petitioner, being the admitted amount of
outstanding liability and security deposits lying with the
respondent, has been dismissed by the learned Single
Judge on the ground that the writ petitioner had made a
money claim and, therefore, he was left to approach the
civil court for redressal of his grievance.
3) We have heard learned counsels.
4) Though, generally, a money claim which is
disputed cannot be entertained in writ proceedings, the
said rule has an exception where the claim is admitted and
there are no disputed questions of fact to be adjudicated
upon.
5) The submission of learned counsel for the
appellant is that the respondent had repeatedly admitted
the liability towards the appellant of the aforesaid amount.
In this regard our attention has been drawn to the
communication dated 24.04.2019, wherein the respondent
stated as follows:
"mDr lEcU/k esa d`Ik;k voxr djk;k tkuk gS fd Jh jkds'k vxzoky izksijkbVj eS0
eSldkWV dkjiksjs'ku nsgjknwu }kjk iwoZ esa Hkh vius vf/koDrk Jh vkj0 ds0 'kEkkZ]
[email protected] Lkkdsr jktiqj jksM] nsgjknwu ds ek/;e ls viuh vo'ks"k /kujkf'k dh ekax
dh xbZ FkhA bl lEcU/k esa bdkbZ ds i=kad
[email protected]&[email protected]@[email protected] fn0 23-07-2018 ds }kjk mldk mRrj
izsf"kr fd;k tk pqdk gS (Nk;kizfr layxu) ftlds vuqlkj eS0 eSldkWV dkjiksjs'ku
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ds i{k esa bdkbZ vfHkys[kksa ds vuqlkj (O.S.L) ek= #0 21]79]673-00 dh /kujkf'k
fudyrh gS rFkk #0 19]43]335-00 dh /kjksgj /kujkf'k ns; gSA tcfd eS0 eSldkWV
dkjiksjs'ku }kjk #0 71]02]864-00 ds Hkqxrku dh ekax dh tk jgh gS tks dh U;k;
laxr ugh gSSA vRk% bdkbZ dks ekU; ugha gSA "
6) On 04.05.2019, the respondents also issued
another inter-departmental communication stating that the
amount of Rs.41,23,008/- be released to the appellant.
This communication, inter alia, reads as follows:
"bdkbZ izHkkjh] nsgjknwu bdkbZ&1] nsgjknwu ds i=akd
[email protected]&[email protected]@[email protected] fnukad 24-04-2019 }kjk ;g voxr djk;k gS fd
Jh jkds'k vxzoky] 45 lh pUnjuxj] nsgjknwu izksijkbVj eS0 eSldkWV dkjiksjs'ku nsgjknwu
}kjk iwoZ esa Hkh vius vf/koDrk Jh vkj0 ds0 'kEkkZ] [email protected] Lkkdsr jktiqj jksM] nsgjknwu ds
ek/;e ls viuh vo'ks"k /kujkf'k dh ekax dh xbZ Fkh ftlds lEcU/k esa mudh bdkbZ ds i=
la0 [email protected]&[email protected]@[email protected] fn0 23-07-2018 }kjk mldk mRrj mUgs izsf"kr
fd;k tk pqdk gS ftldh Nk;kizfr mijksDr i= fnukad 24-04-2019 ds lkFk layXu gS] ds
vuqlkj bdkbZ }kjk eS0 eSldkWV dkjiksjs'ku ds i{k esa mudh bdkbZ ds vfHkys[kksa ds vuqlkj
(O.S.L) ek= #0 21]79]673-00 dh /kujkf'k fudyrh gqbZ n'kkZbZ gS rFkk #0 19]43]335-00
dh /kjksgj /kujkf'k ns; gSA tcfd eSldkWV dkjiksjs'ku }kjk #0 71]02]864-00 dh ekax dh
tk jgh gS] tkssfd muds i= fnukad 24-09-2019 ds vuqlkj bdkbZ dks ekU; ugha gSA
mijksDr ds lanHkZ esa mfpr gksxk fd d`Ik;k #0 41]23]008-00 dh tks /kujkf'k bdkbZ
ds vfHkys[kksa ds vuqlkj ns; curh gS] dk Hkqxrku eSldkWV dkjiksjs'ku dks vfoyEc djkus dh
dk;Zokgh lqfuf'pr djkus dk d"V djsa lkFk gh lkFk eS0 eSldkWV dkjiksjs'ku ds izksijkbVj
Jh jkds'k vxzoky dks fdlh dk;Z fnol esa lacaf/kr bdkbZ ij vo'ks"k /kujkf'k dk tks vUrj
vk jgk gS] dk feyku djkus dk d"V djsa ,oa d`r dk;Zokgh ls v/kksgLrk{kjh dks voxr
djkus dk d"V djsaA "
7) Subsequently, the respondent sent another
communication on 30.07.2020 admitting that an amount
of Rs.41,23,008/- is payable to the appellant consisting of
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Rs.21,79,673/- as outstanding payment for works done,
and Rs.19,43,355/- towards refund of security deposit,
adding upto Rs.41,23,008/-. It was further stated that the
amount cannot be released due to non-availability of
funds. This communication, inter alia, states as follows:
"rRdze esa bdkbZ izHkkjh] nsgjknwu bdkbZ 1 }kjk vius i=kd [email protected]
[email protected]@[email protected]] fnukd 30-07-2020 (Nk;kizfr layxu) }kjk voxr
djk;k x;k gS fd bdkbZ vfHkys[kksa ds vuqlkj Jh jkds'k vxzoky dk bdkbZ ij #0
21]79]673-00 vkmVLVSfMx ykbSfcfyVht rFkk #0 19]43]355-00 /kjksgj /kujkf'k dqy
#0 41]23]008-00 yk[k Hkqxrku vo'ks"k gSA orZeku es dk;Z ij /ku miyC/k u gksus
ds dkj.k bdkbZ }kjk mudks Hkqxrku djuk lEHko ugh gks ik jgk gSA bdkbZ }kjk
xzkgd ls /ku izkIr djus ds iz;kl fd;s tk jgsa gSa] tSls gh xzkgd ls /ku izkIr gksxk]
Jh vxzoky dk Hkqxrku dj fn;k tk;sxkA
bdkbZ izHkkjh] nsgjknwu bdkbZ 1 }kjk ;g Hkh voxr djk;k x;k gS fd Jh
jkds'k vxzoky ds }kjk vius dk;ksZ ds lkis{k #0 71]02]864-00 dh /kujkf'k dh ekax
dh tk jgh gS] tcfd bdkbZ ds vfHkys[kksa ds vuqlkj bdkbZ ij mudh #0
41]23]008-00 /kujkf'k vo'ks"k gSSA iwoZ esa bdkbZ izHkkjh }kjk bdkbZ vfHkys[kksa ls
feyku djkus gsrq Jh vxzoky ls vuqjks/k fd;k x;k Fkk] ijUrq Jh vxzoky }kjk vHkh
rd bdkbZ vfHkys[kksa ls vius fd;s x;s dk;ksZ dk feyku ugh djk;k x;k gSA"
8) The appellant on 01.09.2020, gave its consent
to accept the amount of Rs.41,23,008/- in full and final
settlement of its claims under the contract. Despite the
aforesaid communication, the amount was not released to
the appellant and, therefore, he preferred the writ petition.
9) Even, the counter-affidavit filed in the writ
proceedings admitted that the aforesaid amount was due
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and payable to the appellant. Since there was no dispute
about payment of the aforesaid amount to the appellant, in
our view the learned Single Judge should have entertained
the writ petition, and not dismissed the same by directing
the appellant to prefer a civil remedy.
10) Counsel for the respondent is not in a position
to dispute any of the aforesaid documents. We may take
note of the fact that the respondents took the stand in
their communication dated 23.07.2018, addressed to the
Advocate of the appellant, that - "there were some
defective works which was to be rectified by your client
which were not done by them (your client) which was got
done by the unit debitable to your client. The balance
payment if due to your client shall be made only after
successful completion of the work after handing over to
client and on receipt of the balance payment from Govt. /
Client department for and on whose behalf we are getting
the work done as construction agency".
11) However, no particulars of the alleged defect in
the work done by the appellant were ever communicated,
and no particulars of the work got done allegedly at the
risk and cost of the appellant, were ever provided - not
even in the counter-affidavit. Thereafter, the respondents
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in their communications of 2019-20, taken note of
hereinabove, admitted their liability unconditionally.
12) The stand taken in paragraph 18 of the counter-
affidavit filed in the writ proceedings, was that - "the
petitioner is not willing to accept Rs.41,23,008/- as full
and final settlement of his claim against the U.P. Rajkiya
Nirman Nigam Ltd. and is not willing to finally resolve the
dispute". This stand is also not true as the petitioner
agreed to accept the said amount in full and final
settlement of its claims.
13) For the aforesaid reason, we allow the appeal
and direct the respondents to make payment of
Rs.41,23,008/- to the appellant within four weeks from
today along with interest at the rate of 06 per cent per
annum from 24.04.2019 till payment. The said amount
shall be paid to the appellant, and accepted by the
appellant, towards full and final settlement of its claims.
14) The Special Appeal stands disposed of in the
aforesaid terms.
________________
VIPIN SANGHI, C.J.
___________
R.C. KHULBE, J.
Dt: 23rd NOVEMBER, 2022
Negi
