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2020 DIGILAW 9 (KAR)

Srei Infrastructure Finance Limited v. Bengaluru Development Authority

2020-01-02

ALOK ARADHE

body2020
JUDGMENT Mr.Appaiah P.B., learned counsel for the petitioner. Mr.Gowthamdev C.Ullal, learned counsel for the respondent. 2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally. 3. In this petition under Article 226 of the Constitution of India, the petitioner inter alia seeks a writ of mandamus directing the respondent to pay to the petitioner a sum of Rs.75,02,917/- along with interest at the rate of 18%. 4. Facts giving rise to the filing of the writ petition are that the petitioner is a Company engaged in the business of financing large scale infrastructure projects and rendering consultancy services in the areas of infrastructure projects, township developments, group housing scheme. The respondent is a statutory body which functions as the principal planning, development and regulatory authority for the city of Bengaluru. The respondent floated a tender dated 29.10.2010 inviting reputed and qualified consultants to empanel themselves to render consultancy services in the field of group housing, more particularly for economically weaker sections of the society and for the development/redevelopment of markets in properties belonging to the respondent. The petitioner submitted its bid. The financial bid was opened on 08.12.2010 and the respondent shortlisted 6 qualified agencies including the petitioner, by a notice published on 08.12.2010. The petitioner was empanelled as one of the qualified agencies to render consultancy services for the respondent in the areas of preparing feasibility studies and detailed project reports and for various development works being undertaken by the respondent. The petitioner was assigned the work of preparing the concept plan, prefeasibility analysis and feasibility report for the work of development of economically weaker section housing at Survey No.10 of Thippasandra, Bengaluru over an area of 5 acres 20 guntas of land and a communication was issued to the petitioner on 12.05.2011 for which the aforesaid work was assigned to the petitioner and the petitioner was asked to furnish performance bank guarantee to the tune of 5% of the contract value. 5. Thereafter, an agreement was executed between the parties on 13.05.2011 and the petitioner was awarded the aforesaid work of Thippasandra, Bengaluru in respect of the land measuring 5 acres 20 guntas. 5. Thereafter, an agreement was executed between the parties on 13.05.2011 and the petitioner was awarded the aforesaid work of Thippasandra, Bengaluru in respect of the land measuring 5 acres 20 guntas. In terms of the agreement, the estimated cost of the project was 80 crores and agreed total consideration payable by the respondent to the petitioner for the contract of service was 0.32% of the estimated project cost. It is not in dispute that the work order was issued to the petitioner on 13.05.2011 and the petitioner successfully executed the contract and raised invoice vide Annexure-F for an amount of Rs.4,76,496/- towards payment due to it. 6. The petitioner was again awarded another assignment by a communication dated 18.10.2011 under which the petitioner was required to submit the required pre-feasibility report and to render in full the contract for services under the aforesaid agreement. On completion of the contract, the petitioner raised an invoice to the tune of Rs.3,17,664/-. 7. Thereafter, the petitioner and the respondent entered into an agreement in respect of third assignment on 26.09.2011 which pertains to preparation of detailed project report and relevant project report for development of EWS housing at survey No.31/1A and 31/1B of Doddakallasandra, Bengaluru on an area measuring 2 acres 4 guntas of land. Accordingly, a communication was issued to the petitioner on 06.09.2011. Thereafter, the parties entered into an agreement on 26.09.2011 and a work order was issued to the petitioner on 26.09.2011. The petitioner admittedly completed the assignment and raised an invoice. However, the amount due to the petitioner under the various assignments entrusted to the petitioner was not paid to him despite issuance of notices dated 29.06.2015, 29.06.2015 and 04.07.2015. In the aforesaid factual background, the petitioner has approached this Court. 8. Learned counsel for the petitioner, while inviting the attention of this Court to the statement of objections as well as the documents annexed with the petition, submitted that admittedly the petitioner has completed the assignments entrusted to it. However, the amount due to the petitioner has been withheld arbitrarily by the respondent. It is further submitted that in the statement of objections in respect of some other project, a stand has been taken that an amount of Rs.28,82,301/- has been paid in excess to the petitioner. However, the amount due to the petitioner has been withheld arbitrarily by the respondent. It is further submitted that in the statement of objections in respect of some other project, a stand has been taken that an amount of Rs.28,82,301/- has been paid in excess to the petitioner. It is fairly submitted that the aforesaid excess payment is the subject matter of dispute in O.S.No.2533/2016 and in any case, as per their own stand taken by the respondent, the respondent is under an obligation to pay a sum of Rs.46,20,616/- to the petitioner. Therefore, the aforesaid amount be paid along with interest. 9. In support of his submissions, learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Mrs. Prabhavati Gangadhar v. Life Insurance Corporation of India, Dharwad and Another 1992 (3) KLJ 482 and a decision of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. and Another v. Dolly Das (1999) 4 SCC 450 . 10. On the other hand, learned counsel for the respondent did not dispute the fact that an amount of Rs.46,20,616/- is due and payable to the petitioner after adjustment of an alleged amount of Rs.28,82,301/- which has been paid according to the respondent in excess in respect of another project which is subject matter of O.S.No.7533/2016. 11. I have considered the respective submission made by the learned counsel for the parties and have perused the record. The question whether a writ petition under Article 226 of the Constitution of India is maintainable to enforce a contractual obligation of the State or its instrumentality, by an aggrieved party is no more res integra. The Supreme Court in D.F.O. v. Ramsanehi Singh (1973) 3 SCC 864 , has held that merely because source of right was initially in a contract for obtaining relief against any arbitrary or unlawful action on the part of a public authority, a person cannot be compelled to take resort to the remedy of suit. The aforesaid decision was referred to with approval in ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. and Others (2004) 3 SCC 553 . The aforesaid decision was referred to with approval in ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. and Others (2004) 3 SCC 553 . It is well settled in law that in case of an admitted liability, an aggrieved party need not be relegated to an alternative remedy (See Rajasthan State Electricity Board v. Union of India and Others (2008) 5 SCC 632 ). Once State or an instrumentality of State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably. 12. In the backdrop of the aforesaid well settled legal position, the facts of the case may be examined. In the instant case, admittedly, the respondent is a statutory body. The respondent, admittedly, owes a sum of Rs.46,20,616/-, which is due and payable to the petitioner. The aforesaid amount without any reasons has not been paid to the petitioner. Therefore, the action of the respondent in withholding the amount cannot be held to be arbitrary and amounts to infraction of right of the petitioner under Article 300A of the Constitution of India. The respondent, therefore, is directed to pay a sum of Rs.46,20,616/- along with interest at the rate of 8% p.a. from the date it became due, till the payment is made to the petitioner within a period of three months from today, failing which, the aforesaid amount shall carry interest at the rate of 12% p.a. With the aforesaid directions, the writ petition is disposed of.