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2000 DIGILAW 162 (JK)

Naresh Kumar Gupta v. Union Of India

2000-08-14

NISAR AHMAD KAKRU

body2000
1. The petitioner-contractor entered into a works contract with the respondents for construction of buildings to provide accommodation for married CGOs/HAVs/ OR at Baramulla vide works contract No. CESZ-14/91/92, besides, accommodation for MED Regt. at Pattan vide contract No. SESZ/07/93-94. He claims to have completed these works on 06-05-1997 and 06-01-1998 respectively. To substantiate the contention, reliance is placed on the certificate issued by respondent No. 3 vide No. 8101/ CESZ-14/91-92/992/EB dated 06-05-1997 which is said to have been issued in terms of condition 49 of the General Condition of the Contract enshrined in IAFW-2249. Relying on the certificate it is contended that the respondents are bound to make the payment to the petitioner within the period specified under Condition 66. 2. The respondents have vehemently opposed maintainability of the writ petition on the ground that no fundamental or statutory right of the petitioner has been infringed. They have contended further that the petitioner has failed to complete the work within the stipulated period and has neither rectified the defects nor has he returned the unused store items and breach of contractual obligations in ascribed to the petitioner in so many words, in this background it is canvassed that the petitioner should have sought the settlement of the dispute through arbitration under clause 70 of the 1AFW-2249 which is extracted and reproduced for facility of reference. 70-Arbitration: All disputes between the parties to the contract (other than for which the decision of CWE of any other person is by the contract expressed to the final and binding) shall after the written notice by either party to the other of them be referred to sole arbitration of an Engineer Officer to be appointed by the Authority mentioned in the tender document.� 3. The language of clause makes it very clear that in the event of dispute arising out of the contract, it is referable to the arbitrator. Whether a dispute has arisen out of the contract, the pleadings of the parties assume significance and a cursory glance on the same unfolds that the petitioner claims relief on the basis of recitals or the argument whereas the respondents deny his entitlement on the strength of the very terms and conditions of the agreement pressed into service by the petitioner. It is appropriate to notice that the case on hand does not represent a situation where petitioner relies on one set of conditions and the respondents on a different one but fact of the matter is that both the parties rely upon a set of conditions contained in IAFW-2249. In essence, the rights and obligations of the parties are sought to be worked out in the light of the terms of agreement, thus the controversy centres around the interpretation of the terms and conditions of the contract which are binding, on the parties and as a matter of fact by medium of their pleadings they have reiterated such binding. In this backdrop the petitioner is not entitled to invoke the jurisdiction of this court under article 226 of Constitution, for, such course will tantamount to saying good bye to the terms of the agreement which cannot be permitted in view of the candid admission of the parties, evidencing the fact that their relationship is governed by the agreement. 4. Here it is advantageous to refer to the judicial pronouncement of the apex court in State of UP. Vs. Bridge & Roof Co. (India) Ltd. reported in AIR 1996 SC 3515 at 3520. In Para (21), it was observed: 21. There is yet another substantial reason for not entertaining the writ petition. The contract in question contains a clause providing inter alia for settlement of disputes by reference to arbitration (Clause 67 of the Contract). The Arbitrators can decide both questions of fact as well as question of law. When the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should not follow and adopt that remedy and invoke the extraordinary jurisdiction of the High Court under Article 226. The existence of an effective alternative remedy in this case, provided in the contract itself is a good ground for the court to decline to exercise its extraordinary jurisdiction under Article 226. The said Article was not meant to supplant the existing remedies at law but only to supplement them in certain well recognised situations. As pointed out above, the prayer for issuance of a writ of mandamus was wholly misconceived in this case since the respondent was nor seeking to enforce any statutory right of theirs nor was it seeking to enforce any statutory obligation cast upon the appellants. As pointed out above, the prayer for issuance of a writ of mandamus was wholly misconceived in this case since the respondent was nor seeking to enforce any statutory right of theirs nor was it seeking to enforce any statutory obligation cast upon the appellants. Indeed, the very resort to Article 226 whether for issuance of mandamus or any other writ, order or direction was misconceived for the reason mentioned supra.� 5. In yet another case, recent in point of time, the apex court in Asgar S. Patel Vs. Union of India reported in AIR Supreme Court Weekly (25/2000) held: ..... When the parties enter into a clear, unambiguous and express contract creating mutual rights and obligations, the parties are bound by it and the extraordinary jurisdiction of the High Court under Article 226 of the Constitution which is of discretionary nature cannot be allowed to be utilized for enforcing an obligation in departure from the terms of the: agreement.� 6. Examining the matter in the light of judgments of the apex court (supra), the writ petition is not maintainable, accordingly, it is dismissed. 7. No order as to costs.