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2009 DIGILAW 813 (GAU)

Deoris Marbaniang v. State of Meghalaya

2009-11-18

TINLIANTHANG VAIPHEI

body2009
JUDGMENT Tinlianthang Vaiphei, J. 1. In this writ petition, the Petitioner calls upon this Court to issue a writ of mandamus directing the State-Respondents to pay to him a sum of Rs. 2,19,28,031/- (Rupees two crores nineteen lakhs twenty-eight thousand and thirty-one) only with interest @ 12 per annum till realization. 2. The facts which prompted the Petitioner to file the writ petition may be noticed at the outset. The Petitioner is the proprietor of the firm under the name and style of M/s. Fonnya Sports, which is situate at Nichols Roy's building at G.S. Road, Shillong, is dealing with sports goods and is approved by the State-Respondents for supplying sports goods to them. The State-Respondents, on behalf of the Sports Department and sometimes some Non-Government Organizations, would periodically place demand for supply of sports goods by way of indent and the Petitioner would supply the same to encourage sporting activities among the youths of the State, the payments for which would be made on submissions of the bills. But lately, her bills were not paid regularly in spite of her demands and as result thereof, the unpaid amounts accumulated to Rs. 2,19,28,031/-. Initially, the Respondents used to clear the bills of the Petitioner in every financial year but this system of regular payment came to a halt since June, 2000 they started to make periodical part payments with the resultant huge backlogs. The non-clearance of this huge backlog has caused immense financial problems to the Petitioner as major portion of its capital remaining blocked with the Respondents. In the last financial year, it was given to understand by the officials of the Respondents that all its pending bills would be cleared after the budget for 2003-04 was passed, but, instead of clearing the pending bills, they stopped placing orders altogether except on a few occasions. It is the case of the Petitioner that there is no dispute whatsoever in respect of the aforesaid outstanding dues which can create the problem of payment and that it has the legitimate expectation that the Respondents would keep their commitment and clear their outstanding liabilities. When the Respondents failed to honor their commitment, it approached this Court in WP (C) No. 168 (SH) of 2003 for directing them to pay its pending bills amounting to Rs. 2,19,28,031/-. When the Respondents failed to honor their commitment, it approached this Court in WP (C) No. 168 (SH) of 2003 for directing them to pay its pending bills amounting to Rs. 2,19,28,031/-. According to the Petitioner, during the pendency of the writ petition, the Respondents admitted their liability to the extent of Rs. 1,15,44,930/- (Rupees one crore fifteen lakhs forty-four thousand nine hundred and thirty) only, and on the basis of this admission, this Court disposed of the writ petition by directing them to pay the admitted amount within a period of four months. However, the Respondents, contrary to the clear-cut direction of this Court, paid only a sum of Rs. 47 lakhs in three instalments while refusing to pay the balance amount. Aggrieved by this, the Petitioner initiated this second round of litigation. 3. The writ petition is opposed by the State-Respondents, who have now filed their affidavit-in-opposition. The answering Respondents do admit that: The outstanding amount of Rs. 1,15,44,930/- (Rupees one crore fifteen lakhs forty four thousand nine hundred thirty) only was pending. However, there have been several instances of double billing which had been detected and rectified by the Department and the pending bills were paid on the basis of the rectified records maintained by the Directorate. The Respondent deny that they paid only Rs. 47 lakhs to the Petitioner and claim they have paid Rs. 50,00,244/- on three occasions, namely, (i) Rs. 17,66,050/- on 29.9.04. (ii) Rs. 17,37,895/- on 31.12.04 and (iii) Rs. 14,96,299/- on 29.6.05. According to the Respondents, they have taken steps to cause the bills/accounts verified by the Office of the Accountant General (Audit), Meghalaya in the light of the order dated 30.1.04 of this Court so that the bills admissible for payment be made to the Petitioner. However, claimed the answering Respondents, the note of the Office of the Accountant General (Audit), Meghalaya revealed that: Out of pending bills of Rs. 88.60 lakhs as worked out in the Audit Sports Materials worth Rs. 64.30 lakhs (which constituted about 73% of the total value of outstanding bills) was neither acknowledged by the grantee organizations nor were these recorded in the Issue Register maintained by the Directorate and hence the genuineness of the supply of materials could not be ascertained in Audit. Out of the outstanding amounts of Rs. 1,15,44,930/-, as the Directorate of Sports has paid an amount of Rs. Out of the outstanding amounts of Rs. 1,15,44,930/-, as the Directorate of Sports has paid an amount of Rs. 50,00,244/- till date to the Petitioner, the balance amount outstanding as on the date comes to Rs. 65,44,706/-. According to the Respondents, this balance could not be paid as the sport materials amount to Rs. 64.30 lakhs have not been acknowledged by the grantee-organizations, as pointed out by the Audit, the genuineness whereof has to be verified. The answering Respondents further point out that the Department has incurred extra expenditures to the order of Rs. 11,15,234/- towards sales tax/surcharge charged in the bills by the supplier as pointed out by the Audit in its report. It is maintained by the Respondents that as seen from the Audit Report, there is discrepancy in the figures given by the Audit and the actual liability and unless there is proper verification vis-a-vis the observations of those bills which were not acknowledged by the grantee-organizations, payment could not made as there was likelihood of excess payment to the Petitioner. These are, in short, the stance taken by the answering Respondents. 4. I have heard Mr. M.F. Qureshi, the learned Counsel for the Petitioner. I have also heard Mr. N.D. Chullai, the learned Senior Government Advocate appearing for the State-Respondents. I have also carefully gone through the pleadings of the parties along with the order dated 30.11.2004 in the backdrop of the statement made by the Petitioner therein that the Respondents, during the pendency of the said writ petition, admitted their liability to the extent of Rs. 1,15,44,930/- (Rupees one crore fifteen lakhs forty four thousand nine hundred and thirty) only. In order to appreciate this statement, it will be instructive to refer to the material portion of the order of this Court: The learned Counsel for the Respondents disputed the claim of the Petitioner and states that as against the claim of Rs. 2,66,28,031/- the Petitioner is entitled to only Rs. 1,15,44,930/-. This Court while entertaining the writ petition vide the order dated 18.6.2003, provided that pendency of the writ petition shall not be a bar for the State Respondents to examine the claim of the Petitioner and make payment to the Petitioner for the admitted amount of the bills submitted by her. 2,66,28,031/- the Petitioner is entitled to only Rs. 1,15,44,930/-. This Court while entertaining the writ petition vide the order dated 18.6.2003, provided that pendency of the writ petition shall not be a bar for the State Respondents to examine the claim of the Petitioner and make payment to the Petitioner for the admitted amount of the bills submitted by her. Reiterating the said order, I dispose of this writ petition with a direction to the Respondents to examine the claims made by the Petitioner and pay her the admissible amount. Necessary payment shall be made within a period of four months from the date of receipt of a certified copy of this order which the Petitioner shall furnish to the Respondents. Learned Counsel submits that the Petitioner may be given liberty to take such appropriate legal action towards realization of the balance amount beyond the admitted amount. Liberty is granted. 5. A perusal of the paragraphs extracted above will plainly indicate that the learned Counsel for the Respondents did make an unequivocal statement in the Court in the course of hearing that the Petitioner was entitled to Rs. 1,15,44,930/-. This statement has not been challenged by the Respondents at any time in an appropriate proceeding. If that is so, it was the bounden duty of the State-Respondents to have paid this admitted amount. Section 18 of the Evidence Act, 1872 says that statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or implied authorized by him to make, are admissions. It is, therefore, a rule that when counsels take upon themselves the responsibility of making statements of fact to the Court, the Court is entitled to assume that those statements of fact are true in every particular, so that it may implicitly rely upon them. Admission by counsel after deliberation cannot be resiled from merely on the ground that the party or his counsel was not in full possession of facts. When a party engages a counsel as an advocate to conduct his case, it must follow that he authorizes him to make binding admissions before the Court in the course of conduct of the case. When a party engages a counsel as an advocate to conduct his case, it must follow that he authorizes him to make binding admissions before the Court in the course of conduct of the case. Thus, a party is bound by admissions of fact by his pleader, but he is not bound by his admission on a point of law nor is bound by a mistaken consent of the pleader. Here is a case where an unequivocal admission had been made by the learned Counsel for the State to the effect that as against the claim of Rs. 2,66,28,031/-, the Petitioner was entitled to only Rs. 1,15,44,930/- whereupon a direction was made by this Court for payment of the admissible amount. The term "admissible amount", in the context of this case, can only mean the admitted liability. The admission made by the learned Counsel for the State-Respondents is on a statement of fact and not on a point law and is, therefore, binding upon them. If the admission was indeed due to mistaken consent of their counsel, they ought to have preferred a review petition challenging the judgment of this Court on the ground of mistake of counsel. Having not challenged the same, the direction of this Court to the State-Respondents for payment of the admitted amount has attained finality. The entire exercise taken by them thereafter contrary to the direction of this Court is illegal and appears to have been taken to circumvent the direction of this Court. They cannot play cat and mouse game with this Court. The Petitioner is, therefore, entitled to payment of the balance amount of, say, Rs. 65,44,606/- as per the calculation evident from their affidavit-in-opposition. 6. Coming now to the remaining amount i.e. Rs. 1,50,73,101/-, in the face of strong objection raised by the State-Respondents, I am afraid, this writ Court is not the appropriate forum to examine the contentions of the Petitioner. It is true that, on a given set of facts if a State acts in an arbitrary manner even in matter of contract, an aggrieved party can approach this Court by way of a writ petition under Article 226 of the Constitution, which I had done earlier, and the Court depending upon the facts of the case is empowered to grant the relief. However, in the instant case, apart from the admission made by the learned Counsel for the State-Respondents on the entitlement of the Petitioner to the extent of Rs. 1,15,44,930/-. The State-Respondents have raised dispute on the veracity of its claim to have supplied the sports materials. There is no unimpeachable evidence upon which this Court can come to a definite conclusion that those materials were actually supplied. For effective adjudication of such dispute, it will be necessary for the parties to adduce oral and documentary evidence to substantiate their respective cases, for which this Court is ill-equipped. It is well-settled law that Article 226 of the Constitution is to be invoked for enforcement of an established right and not for the purpose of establishing a legal right. That a writ Court will not entertain a writ petition involving disputed questions of fact is reiterated by the Apex Court in State of Bihar v. Jain Plastics and Chemical Ltd. (2002) 1 SCC 216 . This is what it said: 7. In our view, it is apparent that the order passed by the High Court is, on the face of it, illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in a case of alleged breach of contract. Whether the alleged non-supply of road permits by the Appellants would justify breach of contract by the Respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a Court exercising prerogative of issuing writs. 7. But I must hasten to add that the aforesaid decision does not lay down an absolute rule that in all cases involving disputed questions of fact, the parties should be relegated to a civil suit. Suffice it to refer to the unambiguous observations made by the Apex Court in Century Spg. and Mfg. Co. 7. But I must hasten to add that the aforesaid decision does not lay down an absolute rule that in all cases involving disputed questions of fact, the parties should be relegated to a civil suit. Suffice it to refer to the unambiguous observations made by the Apex Court in Century Spg. and Mfg. Co. Ltd. vs. Ulhasnagar Municipal Council (1970)1 SCC 582 , which are in the following terms: Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary. 8. However, in the instant case, the question of fact raised by the Petitioner concerning the liability of the State-Respondents to pay the balance amount of Rs. 1,50,73,101/-, in the face of the dispute raised by them, cannot be said to be elementary. The dispute so raised by them is complicated as well as serious; determinations of such dispute will necessarily involve adduction of oral and documentary evidence. True, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact even to the extent of taking oral evidence, but then considering the complicated nature of the dispute so raised, it may not be advisable to undertake such exercise in this writ petition and will be more appropriate to relegate the parties to a suit. 9. For the aforementioned reasons, this writ petition is partly allowed. The State-Respondents are directed to pay a sum of Rs. 65,44,606/- (Rupees sixty-five lakhs forty four thousand six hundred and six) only to the Petitioner within a period of two months from the date of receipt of this judgment. As for the remaining Rs. 1,50,73,101/- claimed by the Petitioner, it may seek redress from a competent Court of civil jurisdiction, if so advised. The parties are, however, directed to bear their respective costs.