Allahabad High Court
New Tech Imports Pvt. Ltd vs Union Of India And 3 Others on 1 October, 2019
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R Reserved on :09.04.2019 Delivered on :01.10.2019 Court No. - 34 Case :- WRIT - C No. - 8225 of 2019 Petitioner :- New Tech Imports Pvt. Ltd Respondent :- Union Of India And 3 Others Counsel for Petitioner :-Shashi Nandan (Senior Advocate), Udayan Nandan Counsel for Respondent :- Rajnish Kumar Rai Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV, J.
(Delivered by Hon'ble Sudhir Agarwal, J)
1. Heard Sri Shashi Nandan, Senior Advocate assisted by Sri Udayan Nandan, learned counsel for petitioner and Sri Rajnish Kumar Rai, learned counsel for respondents.
2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner M/s New Tech Imports Pvt. Ltd, registered Office at 1/778 Nicholson Road, Kashmere Gate, Delhi praying for issue of writ of certiorari to quash order dated 15.01.2019 which is a counter offer (Annexure-18 to the writ petition) and also to quash order dated 22.01.2019 (Annexure-22 to the writ petition) whereby Purchase Order dated 24.12.2018 for supply of "Turbo Wheel Impeller Balance Assembly" has been cancelled. Petitioner has also prayed for issue of writ of certiorari to quash E-tender No.101810202 dated 22.02.2019 (Annexure-25 of the writ petition) issued by respondent 3 , Principal Chief Materials Manager (hereinafter referred to as "PCMM"), at Diesel Locomotive Works, Varanasi (hereinafter referred to as "DLW"). Lastly, a writ of mandamus has been prayed for commanding respondents to strictly comply with terms and conditions of Purchase Order no.101810201.18115719 dated 24.12.2018 and to issue Modification Advice for 116 units in Purchase order no.101710860.17119450 dated 14.10.2017.
3. Facts in brief giving rise to present writ petition are, that, petitioner is a Private Limited Company registered under the provisions of Companies Act, 1956 (hereinafter referred to as "Act, 1956") vide certificate of Incorporation dated 19.04.1995 issued by Additional Registrar of Companies, National Capital Region of Delhi and Haryana. Petitioner 2, Manish Gupta has been authorized by Board of Directors of Company to file and pursue this litigation vide Resolution dated 27.02.2019.
4. DLW, Varanasi is a production unit owned by Union of India and Ministry of Railways. It manufactures Diesel-Electric Locomotives and its spare parts. For the aforesaid production it needs various materials and goods and for purchase thereof it issues tenders for various services, supply of spare/goods of different description and quantities, from time to time. Respondent 3 is the Officer of DLW authorized for procurement and supply of goods, works and services, sale of materials and leasing of items etc, for the purpose of production and manufacture of Diesel-Electric Locomotives. Respondent 3 is Tender Accepting Authority (hereinafter referred to as "TAA"). Respondent 3 heads the Material Management Department (Stores Organization) of respondent 2 assisted by Chief Materials Manager (hereinafter referred to as "CMM"), Deputy Chief Materials Manager (hereinafter referred to as "Dy.CMM"), Senior Materials Manager (hereinafter referred to as "SMM")), Assistant Materials Maintenance (hereinafter referred to as "AMM")) and Secretary to PCMM at SMM level. Additionally, Stores Headquarters discharges function of overseeing the administration of Stores set up in the field units and purchase function on behalf of Office of respondent 2.
5. Respondent 3, on 26.04.2018, at 16.33 hours, invited E-bids against Tender no.101810200 with closing date/time 27.06.2018 till 15.00 hours for procurement of supply of "Turbo Wheel Impeller Balance Assembly". During subsistence of E-tenders closing date/time was extended till 02.08.2018, 15.00 hours and same was published on website. Later on tender was cancelled by order dated 21.07.2018. This was done by office of respondent 4 (i.e. Dy. C.M.M.) to benefit unduly and unjustly to M/s Bharat Forge Ltd. which was making attempt to become a vendor at the relevant time.
6. Another E-tender was floated by respondent 3 on 16.10.2018 at 15.45 P.M. vide Tender no.101810201, with closing date/time on 23.11.2018 at 15.00 hours for procurement and supply of 551 numbers of 'Turbo Wheel Impeller Balance Assembly'. One of the vital condition to tender E-bids/quotation was that builder must be an 'approved vendor' in 'Part-1 category' on the date of opening of E-tenders. Relevant Clause 1.26 of tender document reads as under :
"1.26 Items sourced from RCF/ RDSO/ ICF/ CLW/ DLW/ DLMW/ CORE approved vendors.
1.26.1. Wherever necessary as per policy of procurement and is so indicated in the tender schedule, regular purchase order for bulk quantity will be normally placed only on those firms who have been approved in Part-I category by the authorised vendor approving unit for respective items viz.:-
a. DLW, b. RDSO, c. DLMW, d. CLW, e. RCF/KXN, f. ICF, g. CORE 1.26.2. The approval status of the firm will be reckoned as on the date of the tender opening and not thereafter except in case of downgrading/removal/suspension/banning etc. after opening of tender, when changes shall be taken into account while considering the offer."
(emphasis added)
7. M/s Walbar LLC, Mexico (hereinafter referred to as "Principal Vendor") is an "Approved Vendor" in Part-1 Category. The Principal Vendor appointed petitioner, M/s New Tech Imports Pvt. Ltd. (hereinafter referred to as "petitioner-agent") as its Exclusive Tender Specific Authorized Vendor/Supplier vide letter dated 17.10.2018, and authorized petitioner to tender bid to the subject tender dated 16.10.2018. Petitioner submitted digitally signed indigenous E-bid dated 22.11.2018. M/s Bharat Forge Ltd. was not an 'Approved Vendor' as per Clause 1.26.1 of bid document on the date of opening of tender hence, its bid was rejected by respondent 2. The bid of petitioner-agent was accepted. During negotiation petitioner also discounted its bid by 1 % on the insistence by respondents. Respondent 2 issued Purchase Order dated 24.12.2018 (Annexure-7 to the writ petition) for supply of 529 units of 'Turbo Wheel Impeller Balance Assembly' and rate per unit was Rs.987525.00. The delivery was to start by 14.01.2019 and to be completed by 31.12.2019. On 26.12.2018, however, petitioner received an E-mail from respondent 4 instructing it not to take any action on the basis of Purchase Order dated 24.12.2018 as the same was a 'System Generated E-mail' and petitioner was directed to wait till 'Ink Signed Purchase Order' was received by him. Petitioner sent E-mail dated 27.12.2018 acknowledging thanks with respect to issue of Purchase Order and protesting against E-mail dated 26.12.2018. It requested to withdraw E-communication dated 26.12.2018. Respondent 4 again issued another E-mail on 28.12.2018 reiterating that Purchase Order being a 'System Generated E-mail' sent on 24.12.2018 is not to be accepted open, since, it has no legal validity. Petitioner sent letter dated 31.12.2018 claiming that Purchase Order dated 24.12.2018 was legally valid executed instrument/document. Petitioner then sent a letter dated 08.01.2019 for immediate resolution of the matter.
8. Thereafter respondent 4 issued counter offer on 15.01.2019 (Annexure-18 to the writ petition) reducing quantity to 423 and per unit rate as Rs.829540.00. Petitioner got aggrieved and disgraced by counter offer and sent letter dated 17.01.2019 requesting urgent hearing and meeting with officials of respondent 3. It also sent letter dated 24.01.2019 seeking time till 11.02.2019 to reply counter offer. This time was allowed by respondent 4 vide letter dated 25.01.2019. However, without waiting to the extended time i.e. 11.02.2019, Modification Advice dated 22.01.2019 was issued in which Purchase Order dated 24.12.2018 was shown as cancelled. Against above illegal action, petitioner protested vide letter dated 18.02.2019 but unilaterally respondent 3 proceeded to float fresh tender notice inviting E tenders against Tender no.101810202 with closing date/time dated 25.03.2019 at 15.00 hours vide tender notice dated 22.02.2019.
9. The counter offer, cancellation order and fresh tender notice have been challenged by petitioner on the ground that on issue of purchase order dated 24.12.2018, contract was concluded and it could not have been cancelled or modified; the entire exercise is malicious to give benefit to M/s Bharat Forge Ltd; it has never been the practice of respondents to issue Purchase Order/Acceptance Orders in Ink Signed letters, but same were always issued digitally signed and for the first time exception has been made showing apparent malice on the part of respondents; Petitioner has already acted upon purchase order and shipment of goods had commenced, therefore, respondents cannot withdraw the same; without addressing petitioner's representation and grievance, it was not open to respondents to cancel purchase order and thereafter proceed for fresh tender exercise; the entire exercise is in utter violation of principles of natural justice, malafide and discretionary to favour M/s Bharat Forge Ltd. and even otherwise illegal; act of respondents is against contractual principles and there is no justified ground either to modify earlier purchase order or to cancel the same.
10. On behalf of respondents a short counter affidavit sworn by Mohammad Hussain, Senior Material Manager D.L.W., Varanasi on 12.03.2019 has been filed stating that Global Tender No.101810201 opened on 23.11.2018 for procurement of Turbo Wheel Impeller to DLW Part No.16080385 for quantity 515. On tender opening date, following approval sources were available in the item :
(i) M/s Walbar Inc./USA
(ii) M/s Electro Motive Diesel Inc./USA
(iii) M/s GE Transportation Parts LLC/USA
(iv) M/s Walbar Engine Components LLC/Mexico
11. Details of offers received against aforesaid tender shows 6 tenderers, out of which 3 were unapproved/unsuitable and one was unapproved/suitable for extended trial order and rest 2 were approved/suitable. Details given in para 5 of Supplementary Counter Affidavit are as under :-
Sl.
No. Name of Tenderer (M/S) All incl. unit rate Approval Status/Technical Suitability.
L-1 Flesh Forge Pvt. Ltd./Raigarh Rs.682500.80 Unapproved/Unsuitable L-2 Press Comp. International Pvt. Ltd./Banglore Rs.698250.00 Unapproved/Unsuitable L-3 Shakthitech Manufacturing India Pvt. Ltd. Coimbatore Rs.749700.00 Unapproved/Not suitable for further ordering L-4 Bharat Forge Ltd./Pune Rs.829540.00 Unapproved/Suitable for Ext. Trial order L-5 New Tech Imports Pvt. Ltd./Delhi (On behalf of M/s Walbar Engine Component/USA) Rs.1047375.00 Approved/Suitable L-6 EMD Locomotive Technologies Pvt. Ltd./Noida Rs.1067561.39 Approved/Suitable Subject to confirmation of various point.
12. The matter was considered by SAG level Tender Committee and recommendation was accepted by 'Tender Acceptance Authority' on 22.12.2018, as follows :
"(i) To place extended trial order for 106 nos.(20 % of NPQ) inside tendered quantity on M/s Bharat Forge Ltd./Pune at their quoted rates i.e. 703000.00+ GST@ 18%, TUR Rs.829540.00 each.
(ii) To place regular order for 423 nos.(80 % of NPQ) on M/s New Tech Imports Pvt. Ltd./Delhi at their negotiated rates i.e. @ Rs.987525.00 each +GST @ 5 % TUR Rs.1036901.25 each."
13. Accordingly, purchase orders were prepared on 24.12.2018. It is said that after generation of purchase order in MMIS, as per existing scheme of things, System Generated mail along with soft copies of these unsigned purchase orders were automatically sent to vendor's mail box (through e-mails by MMIS), the purpose of which is just to give advance intimation to the vendor. It was not signed or digitally signed document since it was issued just for information. It did not result in concluded contract. There has to be a signed hard copy of purchase order issued by Purchase Officer and send through normal channel of communications. Chief Design Engineer/DLW (CDE/DLW) vide note no.CDE/DLW dated 22.12.2018, received on 24.12.2018 informed that M/s Bharat Forge Ltd. Pune has been enlisted as 'Approved Vendor' for this item in DLW Composite Vendor Director. Thereafter, 'Tender Accepting Authority' on 24.12.2018 instructed to review the case in the light of Chief Design Engineer/DLW's note dated 22.12.2018. Subsequently, both vendors were intimated on 26.12.2018 (25.12.2018 being a gazetted holiday) directing not to take any action against these System Generated E-mails till formal Ink Signed Purchase Orders is not received by them. Tender Committee thereafter has reviewed the case and recommended to cancel purchase order. It issued counter offer to petitioner for the price quoted by M/s Bharat Forge Ltd., Pune. Counter offer, consequently, was issued to petitioner on 15.01.2019. Modification/amendment for cancellation of both purchase orders were issued on 22.01.2019. Petitioner by letter dated 24.01.2019 requested to extend time for submission of their reply to counter offer up to 11.02.2019 which was accepted vide office letter dated 25.01.2019. Petitioner against requested to extend time up to 18.02.2019 vide letter dated 11.02.2019 with a clear stand that they shall not seek any further extension. Again this request was accepted by respondent vide letter dated 14.02.2019 and petitioner was informed that if no reply is received by 18.02.2019, it will be treated as non-acceptance of counter offer. Petitioner did not submit reply by 18.02.2019, hence, case was discharged and Global Tender has been re-invited for above item. Basic reason for cancellation of Global Tender was huge difference in rates of petitioner and M/s Bharat Forge Ltd., Pune. Decision was taken by Tender Committee in the best interest of Railways to protect loss to Government Exchequer to the extent of Rs.15 crores, approximately, and also keeping in view Government of India's policy giving boost to "Make in India".
14. Petitioner has filed a short rejoinder affidavit wherein it has reiterated its stand as pleaded in the writ petition. It is also reiterated that once offer was expected and purchase order was issued, thereafter Tender Committee had no power to review the case or modify any terms of already concluded contract. It is also said that on 18.02.2019 a meeting was held and petitioner found that some more matter needs to be discussed and therefore, sent letter dated 18.02.2019 informing that petitioner shall come to DLW on Thursday/Friday to meet Chief Material Manager subject to his availability, and therefore, contention that petitioner did not submit reply on 18.02.2019 is not correct. It is also said that M/s Bharat Forge Limited, Pune being ineligible on the date of opening of tender, could not have been brought in and for its benefit earlier contract could not have been cancelled.
15. Respondents have filed a short counter affidavit which is also sworn by Mohammad Hussain, Senior Material Manager. It is said therein that Global Tender No.101810201 was opened on 23.11.2018. Tender Committee held its meeting on 05.12.2018 to consider offers received against Global Tender opened on 23.11.2018. The recommendation of minutes were signed on 06/07.12.2018 and recommendation of Tender Committee was approved on 07.12.2018. A Supplementary Tender Committee's meeting was held on 10.12.2018 and 20.12.2018 to discuss the final negotiated offer of petitioner i.e. M/s New Tech Import Pvt. Limited submitted on 08.12.2018. Supplementary Tender Committee's minutes were put up to Tender Accepting Authority, which approved the same on 21.12.2018 with certain modifications. As per decision of Tender Accepting Authority an extended trial order of 106 number was to be placed on M/s Bharat Forge Ltd., Pune and regular order of 529 numbers on petitioner i.e. M/s New Tech Import Pvt. Limited. In the light of new development of enlistment of M/s Bharat Forge Limited (hereinafter referred to as "BFL") as an Approved Source for subject item on 22/24.12.2018, supplementary Tender Committee meeting held on 28.12.2018 and 07.01.2019. Tender Committee submitted its revised recommendations for issue of counter offer to petitioner i.e. M/s New Tech Import Pvt. Ltd. for 423 units at the rate of Rs.8,29,540/- per unit at all-inclusive rate of M/s BFL, in super-session to its earlier recommendation. Counter offer issued vide letter dated 15.01.2019 to petitioner Company. Petitioner visited DLW on 23.01.2019 and submitted a letter on 24.01.2019 requesting respondent for extension of time limit for submitting reply against counter offer by 11.02.2019. Petitioner failed to take final decision on counter offer and again vide letter dated 11.02.2019 requested for further extension in time up to 18.02.2019 and this was also accepted. Since, up to 18.02.2019 petitioner did not submit any reply earlier counter offer was cancelled. With regard to purchase order it is said that purchase order was neither Digitally Signed nor Ink Signed, therefore, no valid purchase order was communicated to petitioner, hence, question of any concluded contract does not arise. It is also said that enforcement of contractual obligation in a writ petition under Article 226 of the Constitution, does not lie. Reliance has been placed on Supreme Court's judgment in Michigan Rubber (India) Ltd. vs. State of Karnataka and Ors. (2012) 8 SCC 216 and MAA Binda Express Carrier Vs North East Frontier Railway (2014) 3 SCC 760. It is reiterated that decision has been taken in public interest to protect public revenue and also to give boost to "Make in India" policy and, therefore, no interference would be justified under Article 226 of the Constitution.
16. On behalf of respondents preliminary objection has been raised and submitted that it is a pure and simple case of enforcement of contract, by means of writ petition under Article 226 of the Constitution, hence, it is not maintainable. Petitioner has remedy in common law. It is also contended that there was no 'concluded contract' and in any case even if there is concluded contract and the same has been wrongly cancelled, by way of writ petition under Article 226 of the Constitution, petitioner cannot seek enforcement of contract and remedy lies, at the best, for claiming damages for alleged breach of contract. Lastly, it is contended that respondents were well within their rights to modify their offer so long as contract has not concluded, also since petitioner did not respond within time which was duly extended twice as per own case of petitioner himself, and thus it has rightly been cancelled.
17. First question up for consideration is "whether present writ petition for enforcement of a simple commercial contract be entertained under Article 226 of Constitution or be declined so as to relegate petitioner to avail remedy in common law".
18. It is true that remedy under Article 226 of the Constitution of India is not absolutely barred but it has been held repeatedly that in the matter of pure and simple commercial contract, extraordinary constitutional remedy under Article 226 is not a substitute for getting the contract executed or for allowing damages to a party for alleged breach of contract since remedy lies in common law by filing suit for enforcement of contract wherever it is permissible or for damages/ compensation for alleged wrongful breach of contract. Reason being that such matters involves recording of evidence, oral and documentary, and remedy under Article 226 of the Constitution cannot be made a substitute of common law civil proceedings and parties must avail such remedy.
19. An exception has been carved out however in cases where contract is "statutory contract" but it has not been disputed before us by counsel for parties that agreement/ contract, in the case in hand, is not a statutory contract.
20. In Bareilly Development Authority vs. Ajai Pal Singh, AIR 1989 SC 1076 Court held that if a person is aggrieved in respect of non statutory and purely contractual rights flowing from a contract, remedy under Article 226 of the Constitution is not available. Court said that no writ or order can be issued under Article 226 so as to compel the authorities to remedy a breach of contract, pure and simple.
21. In Kerala State Electricity Board and another Vs. Kurian E. Kalathil and others, 2000(6) SCC 293 Court said that if a term of contract is violated, ordinarily remedy is not the writ petition under Article 226. Disputes arising out of terms of such contract or alleged breaches have to be settled by ordinary principles of law of contract. Court said that such case is a matter for adjudication by a Civil Court or in arbitration if provided for in the contract.
22. Referring to Bareilly Development Authority vs. Ajai Pal Singh (supra), and State of U.P. and others vs. Bridge & Roof Co. (India) Ltd., AIR 1996 SC 3515, Court in The Rajasthan State Industrial Development and Investment Corporation and Anr. vs. Diamond and Gem Development Corporation Ltd. and Anr., 2013(5) SCC 470 observed as under:
"There can be no dispute to the settled legal proposition that matters/disputes relating to contract cannot be agitated nor terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution. Thus, writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties."
(Emphasis added)
23. In Rajasthan State Industrial Development and Investment Corporation (supra), Court further said:
"It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the Respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. "
(Emphasis added)
24. In State of U.P. and others vs. Bridge & Roof Co. (supra) Court said:
"Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a Contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for Civil Court, as the case may be." (Emphasis added)
25. In Zonal Manager, Central Bank of India vs. Devi Ispat Ltd. and Ors., 2010(11) SCC 186 Court said:
"It is settled law that the disputes relating to interpretation of terms and conditions of a contract could not be examined/challenged or agitated in a petition filed under Article 226 of the Constitution. It is a matter for adjudication by a civil court or in arbitration, if provided for in the contract or before the DRT or under the Securitization Act. "
26. Counsel for petitioner further contended that fault entirely lay upon respondents without giving any opportunity of hearing and notice to parties neither any condition of contract could have been changed nor contract/offer could have been cancelled and it is in violation of principles of natural justice.
27. We find that Railway issued contract on certain conditions wherein it also offers some changes to which petitioner did not agree. Firstly, in these circumstances cannot be said that any concluded contract has come into existence and in any case in the matter of termination of contract, principles of natural justice, are not applicable.
28. It has been held time and again that principles of natural justice are not applicable when a contract in private law is terminated. Cancellation of contract in private law is not a quasi judicial act hence observance of principles of natural justice are not required and atleast cancellation of contract by either party cannot be challenged on the ground that it is in violation of principles of natural justice.
29. In State of Gujarat and Ors. vs. Meghji Pethraj Shah Charitable Trust and Ors., 1994(3) SCC 552, it has been held:
"We are unable to see any substance in the argument that the termination of arrangement without observing the principle of natural justice (audi alteram partem) is void. The termination is not a quasi-judicial act by any stretch of imagination; hence it was not necessary to observe the principles of natural justice. It is not also an executive or administrative act to attract the duty to act fairly. It was - as has been repeatedly urged by Sri Ramaswamy - a matter governed by a contract/agreement between the parties. If the matter is governed by a contract, the writ petition is not maintainable since it is a public law remedy and is not available in private law field, e.g., where the matter is governed by a non-statutory contract." (emphasis added)
30. Following aforesaid decision in Pimpri Chinchwad Municipal Corporation and Ors. vs. Gayatri Construction Company and Anr., 2008(8) SCC 172 Court has held that in the matter of non-statutory contract, High Court should not have entertained writ petition under Article 226 of the Constitution.
31. Counsel for petitioner has vehemently contended that a concluded contract has come into existence and thereafter it was not permissible for respondents to change or alter the same. This fact has been denied by respondents on the ground that E-mail communication did not result in a concluded contract, particularly since petitioner was informed immediately thereafter that unless an Ink Signed communication is given, contract is assumed in the realm of consideration, petitioner should not act upon communication made through on-line communication. What was the condition subject whereof the contract could have been said to be a concluded contract, is disputed fact requiring investigation into facts relating to terms and conditions and communication between parties with respect to contract in question.
32. We assume that a concluded contract came into existence after On-line communication by respondents, still no appropriate provision has been shown to us whether a party can cancel or modify such a contract. At the best such an attempt on the part of a party modifying or terminating a concluded contract may come within mischief or illegal termination of contract or breach of contract, but under the provision of "The Contract Act, 1872" (hereinafter referred to as "Act, 1872") in such a case, affected party is entitled for damages, for which remedy in common law is available. The enforcement of contract have been allowed only in cases where such a contract prevails into realm of statutory contract and not otherwise. Respondents have pleaded that conditions were amended for the reason that there was a huge gap in the prices offered by petitioner and same offered by indigenized namely, M/s BFL, hence for protecting huge amount of public revenue and also with an intention that policy of Government i.e. "Make In India" to the extent it is practicable to be followed, action in question has been taken by respondents. Above averments, ex facie, cannot be said to be wholly impermissible in law and in our view, has some merit, but for the purpose of present case, we are not expressing any definite opinion on the matter, since in our view, enforcement of contract by way of writ petition, is not an appropriate remedy but petitioner must avail remedy in common law by filing a suit with appropriate relief.
33. In view of above, we are clearly of the view that it is not a fit case where this Court must exercise its public law remedy available under Constitution which is extraordinary, discriminatory remedy and instead petitioner must be relegated to avail its alternative remedy by invoking arbitration clause in the agreement or avail common law remedy in Civil Court.
34. Writ petition is, accordingly, dismissed.
Order Date : 01.10.2019 Manish Himwan