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2010 DIGILAW 583 (JHR)

Rabindra Jha v. State of Jharkhand

2010-05-10

AMARESHWAR SAHAY

body2010
Order Heard Mr. Binod Poddar, learned Senior Counsel appearing for the petitioner and the counsel for the State. 2. The petitioner has made two prayers in this writ petition firstly to direct the respondents to release the amount of Rs.61,386/- alongwith interest from May 1992 till the date of payment against the work executed by him in the year 1992 and the second is to direct the respondents Department to immediately appoint an Arbitrator for adjudication of dispute arose between the parties with regard to the balance claim amount of Rs.92,089/alongwith interest. 3. According to the petitioner, he was allotted contract work in the year 1990-91 for the work of Kansjor Left Canal Project at a total estimated cost of Rs.1. 83,511/-. According to him, he completed the work in the year 1992 itself but for the said work done by him, only a part payment of Rs.30,036/- was made to him and an amount of Rs.61,386/- remained due. 4. The petitioner moved this court earlier in the year 2007 itself in WPC No. 2058 of 2007 for the same relief, i.e. for direction to the respondents to release the outstanding amount against completion of the contract work. The said writ petition was dismissed as withdrawn by passing the following order on 21.11.2007:- " After some arguments, learned counsel for the petitioner prays to withdraw this application in order to take recourse to alternative remedy available to him under the law. " This writ application is, accordingly, dismissed as withdrawn with the liberty aforesaid." 5. In the present writ petition, apart from asking the same relief for payment of his outstanding dues against the aforesaid contract work, the petitioner has added one more prayer for direction to the respondent to appoint an Arbitrator to adjudicate the dispute arose between the parties. Though, this second prayer of the petitioner could have been made by him in his earlier writ petition, i.e. WPC No.2058 of 2007 also. However, the said writ petition was dismissed as withdrawn. 6. In course of argument when this Court observed that it was purely a money claim, learned Senior Counsel appearing for the petitioner submitted that though the relief sought for in this writ petition is of , money claim but since the respondents have admitted his claim and, as such, this court can direct the respondents to pay the outstanding dues. In course of argument when this Court observed that it was purely a money claim, learned Senior Counsel appearing for the petitioner submitted that though the relief sought for in this writ petition is of , money claim but since the respondents have admitted his claim and, as such, this court can direct the respondents to pay the outstanding dues. Relying on two decisions of the Single Bench of Patna High Court in the case of "Pyrites Phosphates and Chemical Limited vs. State of Bihar, reported in 1997(0) AIJ-BH 1700548 [: 1997(2) PLJR 1 ]" and in the case of "Ram Chandra Singh vs. State of Bihar & Others, reported in 2000(2) PLJR 173", he submitted that if the contractor's claim is not denied and is admitted then the High Court in its writ jurisdiction may direct the Department to make payment. 7. On the other hand, a Single Bench of this Court in the case of "Data Alloys Limited vs. Steel Authority of India Limited & Others, reported in 2003(3) JCR 500 [: 2006(2) JLJR 519 ]" in almost a similar case as the present one has held that a writ of mandamus to release the amount arising out of a contract cannot be issued. From the facts of the said case it appears that the contractor had undertaken two contract works of estimated cost of Rs.1,70,96,450/- and 2,75,92,145/-. The contractor after completing the project submitted his bills but except part payment nothing was paid to him. The dispute with regard to the payment of amount covered by the bill was also a subject matter of the arbitration proceeding. 8. In this situation, the learned Single Judge of this Court taking into consideration the aforesaid fact held that for release of amount which is a money claim arising out of a contract, no writ of mandamus directing the respondents to pay all the agreed and admitted dues, can be issued. However, it was observed in the said order that if the dues are admitted, the respondents shall consider the claim if there is no other impediment. 9. In the present case, it appears that the petitioner in para-18 of the writ petition has specifically stated that he requested the respondent Department for appointment of Arbitrator in the matter to adjudicate the claim but no steps has been taken by the respondents. 10. 9. In the present case, it appears that the petitioner in para-18 of the writ petition has specifically stated that he requested the respondent Department for appointment of Arbitrator in the matter to adjudicate the claim but no steps has been taken by the respondents. 10. In my view, since the contract agreement contained the clause of arbitration and, therefore, the petitioner can very well take action against the respondents under the Arbitration and Conciliation Proceeding Act, 1996 pursuant to the terms of the contract agreement. 11. From the averments made in the writ petition itself, it appears that there is some dispute with regard to payment for which the petitioner wants the matter to be adjudicated by the Arbitrator. 12. It is a settled law that when there is money claim arising out of a contractual obligation and the liability is disputed, this court in exercise of jurisdiction under Article 226 of the Constitution of India cannot issue direction to make such payment. In the present case also when the petitioner himself prays for appointment of arbitrator therefore the claim cannot be said to be admitted one. 13. The petitioner has the alternative and efficacious remedy available to him under the law, which he has not exhausted despite liberty given to him by this Court in the earlier writ petition filed by him. 14. For the reasons stated hereinabove, I do not find any merit in this writ petition and, as such, the same is hereby dismissed. The petitioner, if so advised, may avail the alternative remedy available to him under the law.