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2018 DIGILAW 141 (CAL)

J. J Offset Printers v. A&N Administration

2018-01-18

SAMBUDDHA CHAKRABARTI

body2018
JUDGMENT : SAMBUDDHA CHAKRABARTI, J. The business of the petitioner is multi-colour offset printing. In the year 2014, the Principal, Government Senior Secondary School, R.K Pur i.e. respondent no. 5, placed several orders to the petitioner for supply of various printed materials which were supplied to the office of the respondent no. 5 on February 03, 2014. It raised a bill of Rs. 4,87,900/-. The respondent no. 5 had accorded expenditure sanction by various orders against the voucher contingent bills which were sent to the Sub-PAO for releasing the same in favour of the petitioner-firm. 2. Since the amount was not paid for a very long time, the petitioner made a representation on January 29, 2016 to the Accounts Officer, Directorate of Education. This was followed by several representations which have been annexed to the writ petition as Annexure P-6. Lastly, the petitioner issued a legal notice on April 17, 2017 requesting the authorities to release the outstanding dues within 30 days failing which he would approach the court for recovery of the said amount. 3. The petitioner states that he had invested huge amount of money for supplying the said items by taking loans. While receiving the said items, the office of the respondent no. 5 never complained that the supplied materials were of inferior standard or found to be unsatisfactory. 4. Since the respondents had not released the amount, the petitioner has filed this writ petition inter-alia praying for a direction upon the respondent no. 5 to release the outstanding dues along with the accrued interest at the rate of 18% per annum to be paid till the date of realization. 5. The respondents have contested this writ petition by filing an affidavit-in-opposition wherefrom it appears that the Sub-PAO raised an objection and returned the bill to the Principal of the school by observing that the financial implication involved in the bill was beyond the financial powers of the DDO. 6. The respondent No. 5 had issued some materials supplied by the petitioner to the feeder schools and to another office and it was reported to the Principal by the feeder schools that the materials were of inferior standard. Therefore, respondent no. 5 has sent a letter and a reminder to the petitioner to collect the unused supplied items observing that the materials were sub standard and the unit cost of the items was on the higher side. Therefore, respondent no. 5 has sent a letter and a reminder to the petitioner to collect the unused supplied items observing that the materials were sub standard and the unit cost of the items was on the higher side. The petitioner was asked to produce new bill with appropriate unit cost. Since the supplier neither collected the unused materials nor presented any fresh bills, the objected bills were kept in the custody of the respondent no. 5. However, on representation of the petitioner, the bills were processed for obtaining expenditure sanction order from the competent authority in February 2017. 7. It further appears that during the pendency of the writ petition, it was decided by the authorities to call for an explanation by the then Principal for breach of the well settled government rules. It was also instructed to issue a direction to the current of the Principal of the said GSSS, R.K Pur to constitute a committee of officers from the school headed by the Principal and to prepare a list of the items and to verify the quantity of the items supplied by the petitioner and to issue a certificate thereon duly signed by the Committee and countersigned by the Principal. 8. The current Principal of the school informed that a committee has been constituted and verification of items had been completed. A report dated November 02, 2017 had been received at the Directorate of Education on November 03, 2017. It has been the contention of the respondents that since the matter was under active consideration by the concerned department, there was no scope for the petitioner to agitate his grievance. 9. Although the respondents have not taken the point in their affidavit, Mr. Mandal, the learned Government Pleader made a faint submission that the petitioner ought to have approached the civil court for realization of the amount raised through the bills for the articles supplied by him. 10. Even if such had been the traditional view of the court in common law at one point of time the writ courts for more than half a century have been taking a very different view entitling a petitioner to invoke writ justification for non-payment of dues receivable by him from the respondents which are instrumentalities of the State and increasingly the right of the petitioner to maintain a writ petition assailing non-settling of monetary claim has been recognized. More than 50 years ago, in the case of Burmah Construction Company v. State of Orissa, reported in AIR 1962 of SC 1320, the Supreme Court had held that an order for payment of money may be made in a writ proceeding in enforcement of statutory function of the state or its officers. More recently, the Supreme Court in the case of Godavari Sugar Mills v. State of Maharashtra, reported in (2011) 2 SCC 439 has echoed the same view as expressed in the case of Burmah Construction Company (Supra). 11. It appears from the annexures to the writ petition that the respondent no. 5 which is a government school placed orders with the petitioner for supply of various articles as mentioned therein. The affidavit-in-opposition makes it clear that the orders were placed for meeting the requirement of the feeder schools and the DDO office. Thus, the respondents had definitely been acting in discharge of public duties and placing the orders with a request to submit bills for payment itself constituted an implied contract by and between the parties that upon supply of relevant materials, the respondents shall make the payment. 12. In the case of ABL Ltd. International Limited v. Export and Credit Guarantee Corporation of India Ltd., reported in (2004) 3 SCC 553 , the Supreme Court has held that once the State or instrumentality of the State is a party to a contract it has an obligation to act actually, fairly and reasonably which is the requirement of the Article 14 of Constitution of India. Therefore, if by impugned repudiation of the claim of the appellant (here the petitioner), the respondents have acted in contravention of Article 14 of Constitution of India, a writ court can issue suitable direction to set the arbitrary action of the respondents rights. 13. In view of the principle of law so settled over a long period of time, there can be no doubt that the petitioner is entitled to maintain a writ petition seeking a direction upon the respondent no. 5 to make payment for the articles supplied by him on the orders submitted by the latter. 14. It appears from the enquiry report submitted by committee constituted for preparing the list of items and verifying the quality of items supplied by the petitioner, that the items procured by the petitioner were physically verified. 5 to make payment for the articles supplied by him on the orders submitted by the latter. 14. It appears from the enquiry report submitted by committee constituted for preparing the list of items and verifying the quality of items supplied by the petitioner, that the items procured by the petitioner were physically verified. The members of the committee unanimously found that the articles supplied could be used for the purpose they were meant for. Since materials of similar quality or standard were used in different schools, the members of the committee were of the view that the bills raised against the articles supplied by the firm might not be kept pending on the basis of the quality or standard of the materials. 15. Thus, it appears that the bills raised by the firm were withheld on the ground of poor quality of the materials supplied. 16. Since the respondents themselves directed the current Principal of the school to constitute a committee for preparing the list and verifying the quality of the materials and since the enquiry committee so constituted had unequivocally expressed its opinion that the materials so supplied by the petitioner may definitely be used for the purpose for which they were meant, there is no point for the respondents in not making any payment towards the bills raised by the petitioner when the members of the committee themselves were of a unanimous view that the bills against the articles supplied by the firm might not be kept pending on the ground of the quality or standard of the materials. The respondents have no excuse now not to make any payment towards the bills raised by the petitioner or to sit over the matter. This report was prepared on November 02, 2017. The affidavit recorded that the matter was under active consideration by the concerned department. But in spite of it, in more than two months' time since then no payment had been made by the respondents even after getting the opinion of the committee constituted at their instance. 17. The respondents are directed to make payment of the total sum as raised by the petitioner through various bills within a period of four weeks from the date of communication of this order. 18. 17. The respondents are directed to make payment of the total sum as raised by the petitioner through various bills within a period of four weeks from the date of communication of this order. 18. The petitioner has also prayed for an interest at the rate of 18% per annum from the date the bills become payable till the realization. 19. This is a case where there has been undoubtedly an unusual delay in making payment in respect of the bills. The bills were not cleared for one reason or the other. The petitioner made a number of representations which did not produce any result. A legal notice also could not yield any better result. Even after the committee had found the quality of work to be good enough for the bills to be cleared, the respondents have not taken any step. Pendency of the writ petition cannot be a ground for non-payment of the amount due to the petitioner. 20. Thus, there has been a delay of about four years from the date of submission of the bills by the petitioner. The firm had invested good amount by borrowing loans from different banks as well as financial institutions which obviously had to be repaid with interest. Thus, the respondents are liable to pay interest to the petitioner for the delay in making the payments. 21. The bills were admittedly submitted on February 03, 2014. We may conveniently take three months as the period required for processing and complying with different formalities for making payment. Therefore, the petitioner is entitled to interest from May 03, 2014 till the date of actual payment. 22. The petitioner has prayed for interest at commercial rate which appears to be a little too high. I am of the view that directing the respondents to pay interest on the total sum of the bill at the rate of 10% will strike the balance even. 23. The respondents are directed to pay the petitioner an interest @ 10% within the period as mentioned above. In default, the petitioner shall be entitled to interest on interest @ 6% per annum from the date after the period of four weeks expires till the actual date of payment. 24. The writ petition is allowed. 25. There shall be no order as to costs. In default, the petitioner shall be entitled to interest on interest @ 6% per annum from the date after the period of four weeks expires till the actual date of payment. 24. The writ petition is allowed. 25. There shall be no order as to costs. Urgent certified copy of this order be supplied, if applied for, to the learned advocates for the respective parties upon compliance of usual formalities.