Calcutta High Court (Appellete Side)
M/S. Chowdhury Construction vs The State Of West Bengal & Ors on 11 March, 2020
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
FMA 2245 of 2015
S/L-10 With
11.03.2020
CAN 2448 of 2017 Ct-6 (AD) M/s. Chowdhury Construction Vs. The State of West Bengal & Ors.
Mr. Ayan Banerjee Ms. Debasree Dhamali ... for the appellant.
Mr. Samrat Sen, Sr. Adv.
Mr. Amitava Mitra ... for the State.
The appeal is completely devoid of merit and may be based more on how a Government official was surprisingly activated in the year 2013 to try and breathe life into a claim of 2008 in respect of a contract that stood satisfied, including upon payment of the final bill therefor, in the year 2007.
There is no dispute that the writ petitioner was engaged for the purpose of construction of a road somewhere in the State. The work was awarded by the State or some division or instrumentality of the State. The contract terms did not permit any claim for escalation. However, during the currency of the contract, there was an unusual spike in the cost of bitumen, which is a key material for laying roads. It appears that a circular was issued by the State or its appropriate agency on February 19, 2007 indicating that upon the actual bills on account of higher expenses incurred for procuring bitumen being submitted, the State would look into the claims on such account of persons entrusted with construction of road as the appellant in the present case. The appellant submitted its final bill sometime in the year 2007 and received payment on October 12, 2007 2 without raising any demand on account of the unusual escalation in the price of bitumen or any prejudice on such account that the appellant may have suffered by way of extra expenses. It was only on or about September 1, 2008, several months after the original contract got discharged by performance and accord and satisfaction, that the claim on account of additional expenses incurred for procuring bitumen was submitted. As was to be expected, such claim was left unattended to as it may not have called for a second look. The appellant claims that in 2013 some intrepid official in the State Government took up the matter and called for an assessment on the basis of the claim. However, upon no fruitful result yielding from such unusual enterprise by the relevant State Government official, the appellant was prompted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution. The contention of the appellant is that the claim on account of the rise in the price of bitumen was de hors the contract. The appellant suggests that since the contract did not permit any claim to be made on account of escalation of any material, the claim was founded entirely on the Government circular of February 19, 2007 and it mattered little that the final bill was raised and the money in respect thereof received without any reservation sometime in October, 2007.
The argument is exceptionable and completely fallacious. The parties to the relevant agreement remained bound by the terms thereof and the issuance of the circular amounted to the Government relaxing one of 3 the terms of the agreement. Instead of the Government writing to each contractor informing such contractor of the relaxation of the term pertaining to price escalation in the light of the extraordinary rise in the price of bitumen, a general circular was issued. However, the legal effect of such circular is that the no-escalation clause in the relevant contract stood modified in respect of bitumen as a result of such circular.
In the event the appellant had a valid claim, the appellant ought to have pursued the same at the time of pressing for its final payment and, after receiving the final payment without any reservation, the appellant could not have asked for any further payment since the relationship between the parties qua the contract stood discharged and extinguished.
In any event, the right to obtain a relief in the extraordinary jurisdiction under Article 226 of the Constitution depends on, inter alia, how just the cause is, how diligent the litigant has been and like equitable considerations. In the present case, the claim could not have been carried to a civil court since it appeared to be barred by limitation. Though the law of limitation, strictly speaking, does not apply to proceedings under Article 226 of the Constitution, when it pertains to a money claim pursuant to a contract and there are doubts as to whether the claim would be entertainable for it to be the subject-matter of a civil suit, the writ court ought to be very slow before receiving the claim or making any order thereon. In this case, the Court has appropriately exercised its discretion to not allow the claim, 4 notwithstanding the rather novel approach of the writ petitioner with the aid of its ally in the State Government machinery.
As indicated at the outset, there is no basis to the claim and the appeal is dismissed with costs assessed at Rs.10,000/-.
FMA 2245 of 2015 along with CAN 2448 of 2017 are dismissed. The judgment and order impugned do not call for any interference.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) (Protik Prakash Banerjee, J.)