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2014 DIGILAW 2136 (ALL)

Pravin Maheshwari v. State of U. P.

2014-07-18

D.Y.CHANDRACHUD, DILIP GUPTA

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JUDGMENT Hon'ble Dilip Gupta, J. The petitioner had a contract with the State Bank of India for supplying a generator for a period of three years. The petitioner is aggrieved by a communication issued by the Bank for the removal of the generator prior to the expiry of the agreement. 2. A similar issue has been considered by this Division Bench in Roshan Lal Yadav Vs. State Bank of India & Anr.1. The Division Bench held as follows: - “The petitioner entered into an agreement with the first respondent for supplying a generator for a period of three years from 15 April 2013 to 14 April 2016. The grievance of the petitioner is that the bank has now notified tenders. The petitioner seeks a mandamus directing the first and second respondents not to interfere with the functioning of the generator supplied by the petitioner for a period of three years. The petitioner also seeks to challenge the notification issued by the State Bank of India inviting tenders. At the highest, the grievance of the petitioner is that the first respondent has, in breach of the contract with the petitioner, now called for fresh tenders. Prayer (ii) essentially seeks specific performance of the agreement between the petitioner and the first respondent. The agreement in the present case is incapable of specific performance, since it is essentially for the supply of movable property. That apart, if, according to the petitioner, the first respondent has committed a breach of contract, the claim of the petitioner must lie in a suit for damages. The bank cannot be restrained from inviting tenders. Learned counsel appearing for the petitioner has relied upon a Division Bench judgment of this Court in A.H. Wheeler & Co. (P) Ltd. & Anr. Vs. Union of India & Ors., 2005 (4) AWC 3604 . The principle which the petitioner seeks to rely is that even if there is a contractual liability, the writ jurisdiction is not barred. There cannot be any dispute about the general principle of law. However, in a matter such as the present where the contract between the parties is, by its nature, determinable and prima facie is incapable of specific performance even in a civil suit, it would be inappropriate for the writ Court to entertain a petition seeking specific performance. There cannot be any dispute about the general principle of law. However, in a matter such as the present where the contract between the parties is, by its nature, determinable and prima facie is incapable of specific performance even in a civil suit, it would be inappropriate for the writ Court to entertain a petition seeking specific performance. However, we leave it open to the petitioner to avail the remedy of instituting a suit for damages before the competent court. The petition is, accordingly, dismissed. There shall be no order as to costs.” 3. The facts in the present case are indistinguishable. We, accordingly, dispose of the petition in the same terms. There shall be no order as to costs.