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2007 DIGILAW 682 (CAL)

Partha Biswas v. West Bengal Housing Board

2007-09-06

JAYANTA KUMAR BISWAS

body2007
Judgment :- (1.) THE petitioner is seeking a mandamus directing the respondents to pay him Rs. 35,76,703/- with interest @ 12% per annum. (2.) IN the opposition the respondents have taken a specific plea that with a pure and simple money claim instead of approaching the Civil court the petitioner has approached the Writ Court by taking out this writ petition dated July 16th, 2007. Hence the question has arisen whether the writ petition is maintainable at all. (3.) BY letters dated March 7th, 2005, April 1st, 2005 and May 20th, 2005 West Bengal Housing Board gave the proprietorship firm of the petitioner release order for the boards commercial "aaj Amar Griho prabesh", and the firm was directed to submit bills for the spots and scrolls accompanied by telecast certificates after completion of the campaign. The petitioner submitted the bills, and after, considering the bills the board paid him Rs. 10,53,584/- out of the billed amount of rs. 42,57,980/ -. When the petitioner demanded payment of the balance of the billed amount, the board informed him that only Rs. 7,49,880/-was due and payable, and he was requested to submit letter of acceptance of that amount as full and final payment of his pending claims. He disputed the position and by legal notice dated August 14th, 2006 called upon the board to pay the billed amount with interest. Since the board declined to pay the amount, he took out the present writ petition. (4.) CITING to me ABL International Ltd. and Anr. v. Export Credit Guarantee corporation of India Ltd. and Ors. , (2004)3 SCC 553 and Barrackpore supplier v. Union of India and Ors. , 2006 (2) CHN 437 , counsel for the petitioner argues that a writ petition seeking recovery of money can be filed, when the debtor is a state within the meaning of Article 12, and hence the writ Court possesses requisite power to issue writ or make order for payment of money due and payable to the petitioner. According to him when the due and payable amount is admitted by the debtor, no question can arise regarding maintainability of the writ petition, since the state, by acting whimsically and arbitrarily, cannot drive the creditor to a Civil court for pursuing a lengthy legal recovery process. According to him when the due and payable amount is admitted by the debtor, no question can arise regarding maintainability of the writ petition, since the state, by acting whimsically and arbitrarily, cannot drive the creditor to a Civil court for pursuing a lengthy legal recovery process. His submission is that in the present case there is nothing to show that the board disputed the claim of the petitioner, and hence there is no reason why the Writ court should not grant him relief. (5.) IN my view, the petitioner has approached the wrong forum. It is true that in ABL International it was said that a writ petition involving a consequential relief of monetary claim is also maintainable. But in the present case the principal relief, and rather the only relief that the petitioner wants, is nothing but a pure and simple money decree from the Writ Court. The single bench decision of this Court relied on is of no assistance as well. A writ petition cannot be a substitute for a money suit. That a part of the claim is admitted by the debtor is no ground either to entertain a writ petition. If an order is to be made accepting such a case, it will amount to exercising jurisdiction of the Civil Court that is empowered to make a Judgment on admission. Simply because the provisions of the Code of Civil Procedure, 1908 can be followed, if necessary, by the Writ Court, it cannot be held that the Writ Court should issue writ directing the debtor to pay the admitted amount. In this context reference can be made to Eastern Coalfields Ltd. v. Raviudyog and Ors. , 1994 Supp (2) SCC 466. In the present case the board called upon the petitioner to accept a part of the claimed amount as full and final settlement of all his bills. It is thus apparent that according to the board the whole billed amount was not payable. Whether the board was justified or right in taking such a stand is a different question, and that is not to be examined by me in the present proceedings. Nothing prevented the petitioner from approaching the Civil Court by instituting appropriate money suit. But he chose to approach the Writ Court, and, in my view, that was his wrong decision. He cannot be given any relief by the Writ Court. Nothing prevented the petitioner from approaching the Civil Court by instituting appropriate money suit. But he chose to approach the Writ Court, and, in my view, that was his wrong decision. He cannot be given any relief by the Writ Court. (6.) FOR these reasons, I hold that the writ petition is not maintainable, and accordingly, I dismiss it. There shall be no order for costs in it.