Punjab-Haryana High Court
Upl Environmental Engineers Ltd vs State Of Punjab And Others on 20 November, 2008
Author: Hemant Gupta
Bench: Hemant Gupta
Civil Writ Petition No. 19770 of 2008
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 19770 of 2008
Date of decision: 20.11.2008
UPL Environmental Engineers Ltd.
....Petitioner
Versus
State of Punjab and others
....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE NAWAB SINGH
Present: Mr. Kamal Sehgal, Advocate,
for the petitioner.
*****
HEMANT GUPTA, J The petitioner has invoked the extra-ordinary jurisdiction of this Court for issuance of direction to the respondents to make payment of running bills amounting to Rs.1,03,51,417/- pending since December, 2006 along with interest thereon.
It is the case of the petitioner that petitioner was granted a contract for laying of small bore sized sewerage system and construction of sewerage treatment plant in seven villages of District Moga. The petitioner has made considerable progress in the execution of the contract and has submitted running bills to the tune of more than Rs.3 crores, but the payments have not been made in terms of the contract. The petitioner relies upon communication dated 11.6.2007 in respect of pending bills worth Rs.333.01 lacs. It was pointed out therein that 50% of the total work had been carried out and due to non-payment of the bills, the petitioner is Civil Writ Petition No. 19770 of 2008 -2- finding it difficult to carry out the work.
In response to such letters, the respondent has communicated to the petitioner vide Annexure P-8 on 29.6.2007 that the petitioner has not raised any bill for any work executed at site. It was pointed out that the petitioner has raised bills against the material arranged at site, required to be used on various works. In the said letter, it has been pointed out that secured advance against the material supplied can be released to the firm for which the bills should have been submitted for secured advance. But the bills should have been submitted along with the bills of the firms from whom the material has been purchased. But the same has not been done. It was communicated that all the material brought at various sites should be properly stacked, stored and covered. Machinery should be raised at least one feet above the natural ground level and properly stored and covered and well qualified technical person conversant with the sewerage system should be engaged to supervise the execution of the work and get all the works checked from concerned Junior Engineers. It was decided that after completion of the requirements, the material lying at site shall be counted and entered in the Measurement Books by the concerned Junior Engineers and in the second phase, the work already executed shall be got 100% checked in respect of levels, lengths and alignments.
It is also pleaded by the petitioner that petitioner had sought extension for execution of the contract upto 30.4.2009 as the department did not release the necessary funds. The petitioner asserts that a sum of Rs. 31,53,522/- has been released in respect of work executed in villages Noorpur Hakim and Kot Sadar Khan. As per the petitioner, the outstanding amount to be paid by the respondents with regard to four villages i.e. Civil Writ Petition No. 19770 of 2008 -3- Noorpur Hakima, Kot Sadar Khan, Burj Hamira and Gajjiana is Rs.1,35,04,939, out of which the petitioner has received Rs.31,53,522/- and the balance amount is payable by the respondents.
The petitioner relies upon letter dated 9.9.2008 addressed to the respondents to the effect that the work to the extent of 40% has been completed, but for the 60% work, the petitioner was told that the Government has no funds. It was pointed out that most of the bills have been verified by the engineers-in-charge, but that payments have not been made. With the said averments, the petitioner approached this Court for directing the respondents to release the payments of the running bills.
The learned counsel for the petitioner relies upon 2004(3) Supreme Court Cases 553 ABL International Ltd. And another Vs. Export Credit Guarantee Corporation of India Ltd and others to contend that the writ petition in respect of monetary claim is maintainable before this Court and, therefore, the respondents should be directed to release the payment of running bills.
The maintainability/entertainability of writ petition before this Court in respect of simpliciter money claim arising out of contractual obligations is the question raised in the present petition. In ABL International Ltd. And another Vs. Export Credit Guarantee Corporation of India Ltd and others 2004(3) Supreme Court Cases 553, the issue was for adherence to the contract of insurance. The respondents, before the Hon'ble Supreme Court, denied its liability for the reason of the alleged violation of the contract having been paid in US dollars in stead of payment of consideration by barter of goods. It was found that the issue raised is in respect of interpretation of the terms of the contract and all necessary facts Civil Writ Petition No. 19770 of 2008 -4- required for interpretation of the clauses of the insurance and import contract being admitted, the matter could be entertained in petition under Article 226 of the Constitution of India. It was also found that there is no arbitration clause in contract in question. It was held to the following effect: -
"What is disputed is the obligation of the first respondent to cover the risk of non-payment of consideration by cash in US currency on the ground that the risk covered by the first respondent is a risk arising out of non-supply of goods by the barter method only.
In our opinion, this limited area of dispute can be settled by looking into the terms of the contract of insurance as well as the export contract, and the same does not require consideration of any oral evidence or any other documentary evidence other than what is already on record. The claim of the contesting parties will stand or fall on the terms of the contracts, interpretation of which, as stated above, does not require any external aid."
In the present petition, the petitioner has not produced the terms and conditions of the contract. It may or may not contain arbitration clause. Still further, the contract has not been completed. The petitioner has sought payment of running bills. The question whether the petitioner is entitled to running bills is depended upon the terms of the contract and satisfactory execution of its contract. Whether the running bills are in respect of material or the work executed, is again a disputed question, which could not be examined in the writ petition. The writ petition involves Civil Writ Petition No. 19770 of 2008 -5- simpliciter money claim at best arising out of breach of contract. The appropriate remedy for the petitioner in such cases is not the writ petition but either to invoke arbitration clause or to go before Civil Court, if there is no arbitration clause in the agreement.
Thus, we do not find that the present writ petition in respect of simpliciter monetary claim should be entertained by this Court arising out of contractual obligations and breach thereof. Consequently, we dismiss the same.
(HEMANT GUPTA) JUDGE (NAWAB SINGH) JUDGE 20.11.2008.
R.S.