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2020 DIGILAW 613 (JK)

Hindustan Forgings & Stampings v. State of J&K

2020-11-21

JAVED IQBAL WANI

body2020
Judgment Javed Iqbal Wani, J.—In this petition, the petitioner on the foundation of the case set up implores for the following reliefs: - (i) Allow this writ petition of the petitioner. (ii) Issue writ in the nature of Mandamus commanding the respondents to release the payment in favour of the petitioner in lieu of the supplies made pursuant to the supply order bearing No. JKSRTC/ DGM/ P&S/RC-70-J/455-69 dated 15.03.2006 as well as JKSRTC/DGM/P&S/RC-471-73 dated 15.08.2016. (iii) Pass such other appropriate order as facts of the case demand and this Hon’ble Court may deem just and proper in favour of the petitioner. 2. The background facts under the cover of which petitioner claims the reliefs aforesaid are that the petitioner is a duly registered firm with the Government of India and that respondents particularly respondent No. 3 issued Tender Notice No. 05 of 2015-16 dated 11.01.2016 for an on behalf of respondent No. 2 for supply of special tools and equipments detailed out in the tender document. 3. According to the petitioner the aforesaid Tender Notice was published in local daily newspapers. 4. According to the petitioner it being eligible in all respects and after satisfying the terms and conditions laid down in the tender document submitted a tender bid before the respondents within the time schedule. 5. According to the petitioner respondents after evaluating the bids of the petitioner issued supply order in its favour vide order No. JKSRTC/DGM/P&S/RC-70/J/455-69 dated 15.03.2016 in respect of 32 separate items. 6. According to the petitioner the aforesaid supplies have had to be made within the period of 60 days as stipulated in the terms and conditions of the Tender Notice. 7. According to the petitioner a specific condition being condition No. 7 had been incorporated in the Tender Notice providing that in case the equipment was found to be sub-standard, the supplier is bound to make its replacement. 8. According to the petitioner the respondents after receiving the supply were bound to make 100% payment through cheque /demand draft/ RTGS mode against the delivery after obtaining satisfactory inspection report from the Committee of the officers nominated for the purpose as mentioned in the supply order as well. 9. According to the petitioner after supplies as stipulated in the supply order were made in 2 phases worth Rs. 66,08,530/= and the respondents after receiving the aforesaid supplies made a part payment of Rs. 9. According to the petitioner after supplies as stipulated in the supply order were made in 2 phases worth Rs. 66,08,530/= and the respondents after receiving the aforesaid supplies made a part payment of Rs. 32,26,950/= in the bank account of the petitioner being operated by it in Syndicate Bank, Banglore. 10. According to the petitioner though neither the Tender Notice nor supply order provided about furnishing of the tools and equipments of a particular brand yet upon insistence of the respondents and after making the entire supplies, the petitioner lifted back some of the items which according to the respondents were not of a particular brand and replaced by them by requisite particular brands as desired by the respondents vide letter dated 08.10.2016. 11. According to the petitioner thereafter the respondents were requested for joint inspection of the supplies made by the petitioner and also simultaneously a request was made for release of balance payment vide communication dated 25.10.2016. 12. According to the petitioner despite addressing various communications for releasing of balance amount of Rs. 33,81,580/=, the respondents did not respond to the said communications despite the fact that the respondents issued certificates qua the items relating satisfactory installation, commissioning and working of the same. 13. According to the petitioner respondents failed to release the balance amount of Rs. 33,81,580/= despite addressing of communication latest by 17.12.2018 leaving thereby no option open to the petitioner except to seek indulgence of this court. 14. Per contra, respondents in their objections filed in opposition to the writ petition while controverting the claims of the petitioner urged in the writ petition, yet admitted that the petitioner was a successful tenderer in the tendering process initiated by the respondents Corporation for supply of tools/ equipments and that a part payment of Rs. 32,26,950/= was released in favour of the petitioner however, in the process it was found that the tools/ equipments supplied by the petitioner firm were not as per the mark/ brand resulting into the rejection of the same by the Inspection Committee of the Corporation. 15. According to the respondents the petitioner firm did not supply the tools/ equipments after an inspection of the designated Inspection Committee asked the petitioner to replace the same. 16. According to the respondents the petitioner was informed that remaining balance payment cannot be released unless and until the rejected supplies are replaced. 17. 15. According to the respondents the petitioner firm did not supply the tools/ equipments after an inspection of the designated Inspection Committee asked the petitioner to replace the same. 16. According to the respondents the petitioner was informed that remaining balance payment cannot be released unless and until the rejected supplies are replaced. 17. According to the respondents the supplies made by the petitioner even have been ordered to be looked into by the Departmental Inquiry Committee constituted vide order No. 140-JKSRTC of 2016 dated 22.11.2016 which after meeting on 09.12.2016 observed as under: - The said firm should submit the in-house technical testing report of the spares/ machineries supplied to mains stores Jammu and should attend the 2nd meeting along with their engineers and mechanic for technical verification of spares/ machineries. 18. According to the respondents the said Committee again met on 21.01.2017 in presence of proprietor of the petitioner firm and it was resolved that since the petitioner firm failed to submit the necessary documents, therefore, the Committee concluded that the tools/ equipments supplied by the petitioner are not as per the said order and are therefore, rejected. 19. According to the respondents the matter is being also inquired into by the Crime Branch, Jammu under PV No. 219/2018. 20. Heard and considered. 21. The wharf and woof under the shade of which the entire controversy is raised in the instant petition is that the petitioner made supplies of tools/ equipments to the respondents Corporation in response to a supply order No. JKSRTC/DGM/P&S/RC-700-J/455-69 dated 15.03.2016 owing its origin to a tendering process initiated pursuant to Tender Notice No. 05 of 2015-16 dated 11.01.2016 requiring the petitioner to supply tools/ equipments detailed out therein the said notice. The petitioner received a part payment of Rs. 32,26,950/=, however, had been refused the balance payment owing to the supply of tools /equipments not being of the requisite mark/ brand the respondents had asked for and that though some tools/ equipments were replaced yet, the Committee constituted by the respondents found the tools/ equipments not of the mark/ brand the Corporation. The matter is also stated to be inquired into by the Crime Branch, Jammu. 22. The matter is also stated to be inquired into by the Crime Branch, Jammu. 22. The petitioner, however, would dispute and deny the allegations of the respondents and would insist that the supplies were made of the tools/ equipments as were sought by the respondents and that the respondents cannot withhold the balance payment. 23. Indisputably a serious dispute have arisen between the petitioner firm and the respondents qua the quality of the special tools/ equipments in question irrespective of the fact that the respondents have made a part payment to the petitioner and as such, dispute the liability alleged by the petitioner qua the balance amount. 24. The decision in the aforesaid kind of disputes admittedly would rest on serious and complicated questions of complex nature which may for their determination require oral evidence to be taken particularly in view of the stand taken by the respondents in the light of the report of the Inquiry Committee, and therefore, the said disputes may not appropriately be tried and adjudicated in the instant writ petition while exercising extraordinary writ jurisdiction. The law in this regard is settled by a long line of decisions of the Apex Court and reference and reliance to “Punjab National Bank V. Atmanand Singh reported in 2020 SCC online SC 433”, would be relevant herein. In para 17 of the said judgement, it is noticed as under: - “The Appellant-Bank has rightly invited our attention to the Constitution Bench decision of this Court in Thansing Nathmal (Supra). In paragraph 7, the Court dealt with the scope of jurisdiction of the High Court under Article 226 of the Constitution in the following words: - 7”... The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again, the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a Court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. Similarly, another Constitution Bench decision in Suganmal (supra) dealt with the scope of jurisdiction under Article 226 of the Constitution. In paragraph 6 of the said decision, the Court observed thus:- 6. On the first point, we are of the opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax... We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right”. We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right”. And again, in paragraph 9, the Court observed as follows: - 9. We therefore hold that normally petitions solely praying for the refund of money against the state by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defenses to the claim, defenses which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction”. 25. In view of above, exercise of extraordinary jurisdiction in the matter is declined. 26. This court, however, refrains from making any observation qua the issues/ disputes referred to hereinabove between the parties lest it may cause prejudice to either of the parties. 27. Viewed thus, the instant writ petition fails and is, accordingly, dismissed, along with connected IA(s). 28. It is made clear that the dismissal of the instant petition shall not stand in the way of the parties in seeking the resolution of disputes/ issues having arisen between them referred to in the writ petition in an appropriate remedy available under law.