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2020 DIGILAW 89 (BOM)

J P Electrical Enterprises Chandrapur v. Maharashtra State Electricity Distribution Co Ltd, Mumbai

2020-01-10

MILIND N.JADHAV, SUNIL B.SHUKRE

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JUDGMENT : Sunil B. Shukre, J. 1. Heard. Rule. Rule made returnable forthwith. Heard finally by consent. 2. Heard Shri Khapre, learned counsel for the petitioner and Shri Purohit, learned counsel for the respondents. 3. A preliminary objection has been taken on behalf of the respondents as regards maintainability of this petition on multiple counts. The major objection, however, is as regards the involvement of disputed question of facts, which cannot be gone into in exercise of extraordinary writ jurisdiction 226 of the Constitution of India by this Court. Reliance has been placed on the law laid down by the Hon'ble Apex Court in the case of Joshi Technologies International Inc. vs. Union of India & ors, (2015) 7 SCC 728 which has been followed by the Division Bench of this Court in Sujyoti India Private Limited, Nagpur vs. Western Coalfields Ltd. Nagpur, (2017) 4 MhLJ 534 . 4. Although, it has been submitted by the learned counsel for the petitioner that there is no factual dispute involved in this case and that the bills are also not time barred and there has been a specific acknowledgment of the amount of bills given by the respondents so as to attract the provision of Section of 18 of the Limitation Act, we find that that there are number of disputed questions of facts involved in this petition as would appear from the written submissions filed on behalf of the respondents and to which our attention has been drawn by the learned counsel for the petitioner. Thus, it is difficult to record a finding that there is a clear-cut acknowledgment of debt and liability by the respondents in terms of the Section 18 of the Limitation Act. This is something which will have to be established by following the rules of evidence. The veracity of the bills relied upon by the petitioner will have to be ascertained after oral and documentary evidence is obtained on record which would not be possible for this Court in its extraordinary writ jurisdiction. 5. It is true that there could be exceptional circumstances when even the money claims raised in contractual matters can be entertained by a Writ Court. However, we are of the view that unless those exceptional circumstances are demonstrated, it would not be possible for this Court to entertain a money claim like the present one. 5. It is true that there could be exceptional circumstances when even the money claims raised in contractual matters can be entertained by a Writ Court. However, we are of the view that unless those exceptional circumstances are demonstrated, it would not be possible for this Court to entertain a money claim like the present one. One of the exceptional circumstances could be relating to clear acknowledgment of liability of debt by the employer, here the respondents, which is absent here. As stated earlier, the interpretation and necessary conclusion would be required to be drawn on this aspect of the matter on the basis of detailed evidence available on record in this case and therefore, the case in hand does not seem to be an exceptional case wherein the money claim raised in this petition, can be entertained by this Court. 6. There is one more reason why we would hold that this Court cannot entertain the present petition. This case also involves the interpretation of various contractual terms and conditions, which would not be possible without there being available on record a detailed evidence. This was also the view taken by the Division Bench of this Court in the case of Sujyoti India Private Limited (supra) wherein the facts insofar as they are related to interpretation of contractual terms and conditions, were similar as the facts involved in the present petition. 7. Then, there is also a clause, clause 20 incorporated in the General Conditions of Contract, which lays down procedure in regard to resolution of Claims, Disputes and Settlement. This clause and the procedure contained therein are in the nature of an alternate remedy, which the petitioner does not seem to have exhausted in the present case. This is another circumstances which would make this petition as not maintainable before this Court. It appears that the petitioner has not made correct statement in paragraph 11.2 of the memo of petition wherein it has been claimed that the petitioner is approaching this Court after exhausting all the normal remedies. It further appears that the petitioner has not deliberately filed along with memo of petition a document of contract, perhaps to avoid dismissal of the petition at its threshold and petitioner being relegated to the alternate remedy. 8. There is also an argument made by Shri Khapre, learned counsel on behalf of the petitioners in WP Nos. It further appears that the petitioner has not deliberately filed along with memo of petition a document of contract, perhaps to avoid dismissal of the petition at its threshold and petitioner being relegated to the alternate remedy. 8. There is also an argument made by Shri Khapre, learned counsel on behalf of the petitioners in WP Nos. 6016 of 2016 and 6018 of 2016 that the respondent having received the bills submitted by the petitioner and the Chief Engineer, M.S.E.D.C.L., Chadrapur acknowledging the receipt of the bills, has sought guidance from the Chief Engineer (Infra), M.S.E.D.C.L., Mumbai, as he was of the opinion that the bills were submitted belatedly, and also there was no record available regarding completion of the work within prescribed time limit by the contractor. Shri Khapre submits that according to the principle of legitimate expectations, the petitioner ought to have been informed by the respondents about the fate of the bills submitted by it and as it has not been done, direction may be given to the Chief Engineer, Mumbai to take decision thereon, one way or the other. This is opposed by Shri Purohit learned counsel for the respondents. We are not inclined to accept the submission made on behalf of the petitioner for the reason that clause 20 of General Conditions of Contract provides for procedure to be followed for raising the disputes and claims and since this procedure has not been followed apparently in the present case, no such direction as has been sought for by the learned counsel for the petitioner can be issued. The argument in this behalf is rejected. 9. There are other objections raised by the respondents as regards the arbitration clause and the exclusivity of the jurisdiction of Mumbai Courts over the dispute involved in this petition. At this stage, we do not wish to go into these objections as we have already found, for the reasons stated earlier, that this petition is not maintainable. 10. In the circumstances, the petition stands dismissed as not maintainable. The petitioner is at liberty to resort to such appropriate remedy as may be available in law.