Hejian Solidkey Petroleum Machinery Co Ltd v. Indian Oil Corporation Ltd. and Anr

RAJIV SAHAI ENDLAW, J. SEPTEMBER 18, 2015 bs..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 18th September, 2015. + W.P.(C) 8789/2015 & CM No.19504/2015 (for stay) HEJIAN SOLIDKEY PETROLEUM MACHINERY CO LTD. ..... Petitioner Through: Mr. Raman Gandhi, Adv. Versus INDIAN OIL CORPORATION LTD. AND ANR ..... Respondents Through: Mr. V.N. Kaura, Mr. S. Sirish Kumar and Mr. Abhinav Tandon, Advs. for R-1. Mr. Ashish Aggarwal and Mr. Ashish Virmani, Advs. for R-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition seeks a mandamus to the respondent No.1 to release a payment of Rs.3,41,69,381/- minus Rs.20 lakhs to the petitioner towards actual costs of work done under a contract entered into between the petitioner and the respondent No.1. The respondent No.1 and respondent No.2 Punj Lloyd Ltd. are also sought to be restrained from commencing the completion of the work left by the petitioner under the contract. 2. It has been enquired from the counsel for the petitioner, as to how in a purely simple contractual matter, writ remedy can be permitted to be invoked. 3. The counsel for the petitioner first contended that, because the respondent No.1 is a State within the meaning of Article 12 of the Constitution of India, the writ petition would be maintainable. 4. The aforesaid, according to me, is not correct position in law. Merely because there is a money claim against an entity which qualifies as State within the meaning of Article 12 of the Constitution of India, does not justify the resort to Article 226 of the Constitution of India, instead of to the ordinary remedy available under the civil law. 5. The counsel for the petitioner has next invited attention to para 10 of Food Corporation of India Vs. M/s. Seil Ltd. AIR 2008 SC 1101 but upon the attention of the counsel being invited to the fact that the supply of goods in that case was under a statutory order as distinct from under a contract as in this case, the counsel contends that it was also observed that writ petition was maintainable because there was no factual dispute to be adjudicated. It is contended that writ remedy against State can be invoked for money claims simplicitor, if undisputed. 6. It is pleaded in the writ petition itself that the petitioner has already has had two rounds of litigation with the respondent No.1 i.e. firstly by way of challenge to the termination by the respondent No.1 of the contract with the petitioner and by way of a Original Miscellaneous Petition (OMP) under Section 9 of the Arbitration and Conciliation Act, 1996 with respect to the measurements of the work done by the petitioner and which OMP is still pending. It has been enquired, whether not the same is indicative of the monetary claims of the petitioner, as made in this writ petition being also disputed by the respondent No.1 and being not undisputed. 7. The counsel for the petitioner though does not reply to the aforesaid, states that in the OMP aforesaid, relief of payment of the admitted amounts i.e. deductions made towards service tax have also been claimed. 8. I am of the opinion that unless the petitioner is able to show an admission of the State / State instrumentality, against whom writ petition is filed, for the monetary liability claimed, writ remedy cannot be invoked contending that the monetary claimed made is undisputed. It is not open to file a writ petition on this ground contenting that let a notice be issued to find out whether the claim is disputed or not. Ordinarily, the State / State instrumentality is expected to act reasonably and if is not disputing the claim, not withhold the same. 9. The counsel for the respondent No.1 appearing on advance notice states that in fact there have been six earlier rounds of litigations and this is the seventh litigation front which the petitioner is attempting to open. The counsel further states that the respondent No.1 disputes the claim made in this petition. 10. In view of the aforesaid, it has been enquired from the counsel for the petitioner, as t